Filed 4/20/20 (unmodified and unpublished opinion attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re J.A. et al., Persons Coming 

Under the Juvenile Court Law.

 B297416

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

D.D.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct. No. 19CCJP00773)

ORDER MODIFYING OPINION 

AND CERTIFYING OPINION 

FOR PUBLICATION

[No Change in Judgment]

THE COURT:

GOOD CAUSE APPEARING, the opinion in the above-entitled matter 

filed on April 1, 2020, was not certified for publication in the Official Reports. 

For good cause, it now appears that the opinion should be published in the 

Official Reports and be modified as follows:

On page 17, full first paragraph beginning with “Department‘s only 

other evidence . . .” change the word “suggestions” to “suggestion” in the last 

sentence.

There is no change in judgment.

It is so ordered.

________________________________________________________________________

RUBIN, P. J. MOOR, J.
Filed 4/1/20 In re J.A. CA2/5 (unmodified and unpublished opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

In re J.A. et al., Persons Coming 

Under the Juvenile Court Law.

 B297416

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

D.D.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct. No. 19CCJP00773)

APPEAL from orders of the Superior Court of Los Angeles County. 

Philip L. Soto, Judge. Reversed.

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

Defendant and Appellant.

Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant 

County Counsel and Sally Son, Deputy County Counsel, for Defendant and 

Respondent. 

__________________________

Mother D.D. appeals from the order adjudicating her two children, 

J.A. (Toddler) and D.Y. (Baby) dependent, and the dispositional order 
2

placing the children in her home, but requiring her participation in certain 

programs and services. The sole basis of dependency was mother’s use of 

medical marijuana while pregnant with Baby. We conclude the evidence is 

insufficient to establish mother abused marijuana or that any such substance 

abuse placed the children at risk of serious harm. We therefore reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The family came to the attention of the Los Angeles County 

Department of Children and Family Services (DCFS or Department) at 

Baby’s birth, when he and mother tested positive for marijuana. Toddler 

had just turned four years old. The boys’ fathers are unknown and were not 

parties to this proceeding. 

1. Baby’s Birth and Mother’s Marijuana Use

Baby was born in December 2018. When mother and Baby tested 

positive for marijuana, mother admitted consuming edible marijuana. She 

denied smoking marijuana.1 Mother explained that she had researched her 

pregnancy symptoms and read articles online which indicated that 

marijuana would be the safest alternative to pills to treat her symptoms. 

Mother has a medical marijuana card, and used the marijuana to help with 

pain and swelling. However, she conceded that, although she had obtained 

prenatal care, she did not inform her doctor about her marijuana usage, 

believing that the doctor would have judged her. 

1 The record indicates that mother admitted smoking five to six 

cigarettes per day. Given mother’s repeated denial of smoking marijuana, 

this admission appears to relate to tobacco cigarettes. 
3

There is some dispute in the record as to whether mother admitted 

using medical marijuana “throughout” her pregnancy or only for the last 

few months. Similarly, there is some dispute as to whether she admitted 

taking it every day or only as needed. 

After Baby’s birth and positive test, the doctor told mother that she 

could not breastfeed until she tested clean, so mother stopped taking 

marijuana. Mother’s drug test on December 13, 2018, a few days after 

Baby’s birth, was still positive for cannabinoids. Thereafter, on December 

28, 2019, mother tested negative. Mother appeared for several more drug 

tests during the course of the proceedings. The only results which are in 

the record are negative, and DCFS makes no assertion that mother tested 

positive after December 13, the day that Baby was three days old. 

Mother has no criminal history. Mother lived with maternal 

grandmother; maternal great-grandmother lived nearby and both women 

helped with child care. (As there are no paternal relatives in this case, we 

simply refer to “grandmother” and “great-grandmother.”) Mother stated 

that she safely stored her medical marijuana edibles on a top shelf away 

from Toddler. There was no evidence to the contrary. Mother explained 

that, although she took medical cannabis, she was never under the influence 

when she was caring for Toddler, and was never “high.” Greatgrandmother concurred that mother was never high. There is some 

objective evidence to support mother’s assertion that her cannabis use did 

not render her unable to care for the children. On December 12 – one day 

before mother’s drug test showed that she was still positive for 

cannabinoids – the social worker met with mother, and described her as 

“cooperative, easy to engage and presented with an appropriate affect. 
4

Mother displayed no visible indication of cognitive impairment or 

substance use.” She observed mother interacting with Baby “in an 

appropriate and nurturing manner.” 

2. The Department’s Informal Intervention

The initial referral from the hospital came to DCFS’s attention on 

December 11, 2018.2 The Department did not immediately file a petition 

but instead attempted to resolve any problems with mother’s voluntary 

participation.

After mother’s release from the hospital, a social worker did a home 

visit of grandmother’s house, where mother and the children lived. There 

were a lot of pets there; the house smelled like animals and the social 

worker saw several cats and heard dogs barking behind a closed bedroom 

door. The home “had a foul odor mixed with cleaning products.” She 

noted the refrigerator and freezer were “dirty,” and that there was “minimal 

food” in the refrigerator – only milk, eggs, and a few other items. Mother 

explained that she had just received her financial assistance and would be 

grocery shopping soon. The record also indicates that mother herself had 

been a dependent child, based on, among other things, grandmother’s drug 

use. However, in 2008, after mother had been removed from 

grandmother’s home and reunification services had been terminated, 

2 In addition to reporting mother’s admission of prenatal marijuana 

usage, the referral stated that the attending nurse had observed mother to be 

very rude and cursing at grandmother and Toddler. This is the only 

indication in the record that mother was anything other than even-tempered 

with her family. 
5

grandmother successfully filed a petition under Welfare & Institutions 

Code section 388, and mother was returned to grandmother’s home.3

Although grandmother had obtained sobriety in 2008 – sufficient for 

mother to be returned to her custody – the Department would later use 

grandmother’s drug history to question mother’s housing choices in this 

case.

A week after mother’s release from the hospital, mother moved to 

great-grandmother’s home, saying there were too many pets at 

grandmother’s home and she did not want Baby to feel uncomfortable. The 

social worker did a home visit at great-grandmother’s home, and found the 

home to be “clean, adequately furnished and stocked with sufficient food 

supply, age appropriate toys and clean clothing and linens.” There were no 

visible safety hazards and no signs of drug abuse. Great-grandmother 

would allow the family to stay as long as necessary; however, she was 

having heart surgery in a few days. 

At a home visit with a nurse, Baby was observed to have no 

developmental concerns. The nurse explained, however, that because of his 

prenatal exposure to marijuana, he might possibly show delays when he is 

older. Interviews with Toddler never raised any cause for concern. Mother 

took both children to the doctor as necessary. 

On January 8, 2019, mother explained that housing was still a 

concern. Great-grandmother was in the hospital, awaiting triple bypass 

surgery. Once she returned home, she would need time to recover without 

3 All undesignated statutory references are to the Welfare and 

Institutions Code.
6

the children present. Mother told the Department that she was “hesitant” to 

go to a homeless shelter. 

Mother’s housing situation became more dire by mid-January, when 

both grandmother and great-grandmother received eviction notices and 

were told be out of their respective homes by February 1. The Department 

gave mother information about a shelter, and mother promised to follow up. 

Mother also agreed to participate in Voluntary Family Maintenance. 

On January 22, mother reported that she was not willing to move to 

the temporary shelter because of her young children. She planned to return 

to grandmother’s home until grandmother’s eviction hearing. She 

explained that the Los Angeles County Department of Public Social 

Services had offered her hotel vouchers which she would use if 

grandmother were evicted. The social worker explained that the 

Department had concerns about mother returning to grandmother’s home 

because, at the home visit, “the home appeared unkept, there was no food in 

the home and [grandmother] has an extensive substance abuse history.” 

Mother responded that she plans to buy food for the home. At this point, 

the Department considered mother to have declined Voluntary Maintenance 

Services, and considered filing a petition. 

Before we discuss the proceedings, there are two other factual issues 

which need to be explained: Toddler’s possible need for speech therapy 

and an inconclusive prior referral.

3. Toddler’s Need for Speech Therapy Evaluation

Mother took Toddler to the pediatrician regularly. As early as 

January 2018, his pediatrician noted a speech delay and referred him for 

speech therapy. Mother was told to contact the school district to obtain 
7

speech therapy; she did not do so. In November 2018, Toddler was again 

seen in the clinic (for a flu vaccine). A speech delay was again noted, and 

mother was directed to bring him back in three weeks for further 

evaluation. She did not do so. The child was next seen on December 21, 

2018, for an infection. Mother was again advised that he needed speech 

therapy. She was also told he needed medication for hyperactivity and 

oppositional disorder. On January 4, 2019, his doctor prescribed 

medication for the hyperactivity, and once again pointed out that his speech 

was poor. 

When a Department social worker had interviewed Toddler on 

December 28, she thought he might have a speech impediment or delay. 

Mother agreed that the pediatrician had recommended Toddler obtain 

speech therapy at the school where he attended pre-K classes. The social 

worker recommended that mother ask for an IEP (Individualized Education 

Program); mother said she would look into it. On January 8, 2019, mother 

reported that the school said it did not perform assessments and referred her 

someplace else, which she had not yet had a chance to call. Mother also 

explained that she had initially been hesitant to medicate Toddler for his 

behavior, but had begun doing so and she had seen an improvement in 

Toddler’s behavior. Mother agreed to call Los Angeles Unified School 

District (LAUSD) as soon as possible to get Toddler assessed for speech 

delay.

On January 17, mother reported that she called LAUSD for the 

speech assessment, but was told to call back later because they were on 

strike. 
8

On February 1, 2019, the social worker called mother and asked if 

she had followed up on the speech evaluation for Toddler. Mother stated 

that she spoke with a psychologist, who felt that Toddler’s speech was on 

target and he did not need any speech therapy or intervention. The 

psychologist also advised her to stop his hyperactivity medication, as the 

psychologist felt he was too young to receive medication. The social 

worker asked for the contact information of the psychologist; mother said 

she would text it later. 

The petition was filed on February 5, 2019, and supported by a nondetention report. A hearing was held on February 6, 2019. At the hearing, 

mother’s counsel explained that mother had Toddler assessed for an IEP, 

and brought a copy of the assessment to court. Mother was to provide a 

copy to the Department. The report is dated January 31, 2019. It indicates 

that the evaluation was conducted by a Special Education Teacher, a School 

Psychologist, and a Language and Speech Specialist, all of whom were 

identified by name. It reports that mother’s concern was “Articulation.” 

The “Speech and Language” section of the evaluation states that Toddler 

has “[a]ge appropriate articulation.” The “Health” section reads that he has 

been on medication “to calm him down” since December, and states, “it is 

not effective.” Toddler was assessed as “age appropriate” in all categories, 

with no referral to Regional Center or for rescreening. 

Given that this evaluation was conducted by a psychologist on 

January 31, and concluded Toddler needed no speech therapy, it is apparent 

that this was what mother was referring to when, on February 1, she told 

DCFS that a psychologist had told her Toddler did not require speech 

therapy. 
9

4. The Inconclusive Prior Referral

In December 2015, when Toddler was one year old, there was a 

referral of general neglect and physical abuse against mother, which was 

resolved as inconclusive as to neglect and unfounded as to abuse. 

An anonymous reporter claimed that mother used cocaine, 

methamphetamine and medical marijuana, and was constantly high in front 

of Toddler. The reporter alleged that she left the drugs within Toddler’s 

reach, and that she often left him alone in the house for several hours when 

she went out to purchase marijuana. The reporter alleged that when mother 

was home, she ignored Toddler, and he once fell in the pool because she 

was not watching him. The reporter said mother often left cleaning 

chemicals within the child’s reach, and that she was observed physically 

striking the child on his face, mouth and hands. 

Mother had, at this point, checked herself into the hospital because 

she had an anxiety attack and wanted to self-harm via cutting. She was 

released in a few hours and recommended to mental health services. 

Thereafter, at a meeting at the DCFS office, mother indicated she was 

pursuing mental health services to deal with her anxiety and post-partum 

depression, and also attended an addiction program – the same program 

which had previously helped grandmother recover. After the Department 

confirmed mother had enrolled in the mental health and addiction 

programs, and the family declined further services, the Department 

concluded the physical abuse referral was unfounded and the general 

neglect inconclusive, and closed the referral. 

When asked in the current proceedings about the prior referral, 

mother stated that the referral was made vindictively by an ex-boyfriend, 
10

who falsely alleged mother was using drugs; she said that she only used 

marijuana. Mother denied being enrolled in a drug addiction program and 

denied prior mental health services, post-partum depression, or suicidal 

ideation. 

5. The 300 Petition

The petition to declare the children dependent was filed on February 

5, 2019. It alleged the children were described by section 300, subdivision 

(b) in two counts. The first alleged that Baby was born with a positive 

toxicology screen for marijuana, which condition would not have occurred 

without unreasonable acts of mother, which place him at the risk of serious 

physical harm and emotional damage. The second alleged that mother has 

a history of substance abuse and is a current abuser of marijuana, which

renders her incapable of providing regular care to the children. It further 

alleged that mother abused marijuana during her pregnancy with Baby, and 

on numerous prior occasions was under the influence of marijuana while 

providing care and supervision to the children. As the children are of such 

young ages as to require constant care and supervision, mother’s substance 

abuse interferes with her ability to provide that care and endangers the 

children’s health and safety. 

There was no allegation of neglect based on any purported untreated 

mental health issues of mother, or general neglect leading to the failure to 

obtain necessary medical care. Both counts were based only on mother’s 

alleged substance abuse.

The children were not detained, but remained placed in mother’s 

home. 
11

6. Non-Detention Hearing

A non-detention hearing was held. The Department’s report for the 

hearing explained that the Department believed there was substantial 

danger to the children because the Department was “concerned about 

[m]other’s lack of follow through with [the Toddler’s] speech services.” 

The Department was also “concerned about [m]other’s mental health as 

[m]other was previously hospitalized on a 72-hour psychiatric hold for 

cutting herself shortly after [Toddler’s] birth. Mother has not followed up 

with her mental health services since her initial[] hospitalization.”4 The 

Department did not suggest mother’s alleged failures in this regard were in 

any way related to the alleged substance abuse.

DCFS’s report further indicated that mother admitted using 

marijuana through her pregnancy with Baby and that a social worker’s 

“safety assessment” indicated a “high risk for future abuse.” There was no 

further explanation of the reason for this assessment.

At the hearing, the court found a prima facie case and released the 

children to mother. The court told mother to not use edibles or drugs of any 

kind; she said, “No problem.” The Department was to provide services to 

assist mother; mother was to drug test. 

4 While mother completely denies any hospitalization or suicidal 

ideation, DCFS’s characterization of this event overstates its own evidence. 

The social worker’s description of the events related to the prior referral 

states, “Mother admitted that she was in the hospital because she had [an] 

anxiety attack and wanted to kill herself by cutting. Mother stated that she 

was released in [a] few hours . . . .” There is no evidence of a 72-hour hold 

or that she had actually cut herself. 
12

7. Jurisdiction Hearing

The jurisdiction hearing was held on March 18, 2019, approximately 

six weeks after the non-detention hearing. In the intervening time, there 

were no problems identified in mother’s care of the children. The 

Department acknowledged the LAUSD assessment which mother had 

obtained on January 31, which indicated Toddler was age appropriate in 

speech. However, the Department still took the position that mother 

continued to fail to identify the psychologist who told her, before 

February 1, 2019, that she should stop Toddler’s hyperactivity medication.

The summary of the Department’s findings, in its entirety, reads as 

follows: “It is this DI’s assessment that the mother still does not 

understand the risk she caused to the [Baby] by repeatedly consuming 

marijuana while pregnant. Furthermore, she does not believe that being 

under the influence of cannabis inhibits her ability to parent or supervise 

her four-year-old son, [Toddler]. Additionally, the children’s pediatrician 

reported that she instructed the mother to follow up with Regional Center 

and LAUSD for speech services. On 1/4/19, [Toddler] was placed on 

Tenez for hyperactivity and was informed that [Toddler] had poor speech. 

On 2/1/19, [m]other informed CSW that [Toddler] was assessed by a 

psychologist and it was recommended that [m]other stop [Toddler’s] 

psychotropic medication without medical consultation. However, 

[m]other was unable to provide any documents to support this 

recommendation by the psychologist or the name of the psychologist. [¶] 

The mother does not believe she is at fault or did anything to warrant the 

Department and Dependency Court’s involvement in her family’s life. She 

has reported feeling that cannabis was a safer alternative for pain 
13

management than narcotics or any pain medication she could have been 

prescribed by a doctor. However, she also indicated that she failed to 

notify her treating obstetrician due to fear of judgment. The mother 

submitted to random toxicology screenings on 02/12/2019 and 02/20/2019, 

her results were negative at both [] occurrences. The family has a strong 

support system from extended maternal relatives, however they too believe 

the mother acted appropriately by using cannabis as an alternative to 

narcotics in effect to manage her pain during her pregnancy. Neither the 

mother nor maternal relatives appear to understand the seriousness of the 

mother’s substance abuse during her pregnancy, or the fact that being under 

the influence of cannabis inhibits the mother’s ability to parent[] and 

supervise a newborn as well as a hyperactive toddler. The maternal 

relatives appear to support the mother’s decision to self-medicate. [¶] The 

Department is also concerned about [m]other’s mental health, as [m]other 

was previously hospitalized on a 72-hour psychiatric hold for cutting 

herself shortly after [Toddler’s] birth. Mother has not followed up with her 

mental health services since her initial hospitalization. Furthermore, the 

mother participated in an Up Front Assessment and the recommendation 

was for mother to receive[] mental health services. At this time, the mother 

feels she is not in need of any mental health services and reported that 

‘talking to someone doesn’t work’ for her. [¶] Without the Department 

and Dependency Court’s supervision, it is highly likely that the mother will 

not follow through with services for [Toddler]. Such as speech services 

and mental health to address his hyperactivity and assist in behavior 

modification. Additionally, it is equally likely that the mother will not 

follow through with parenting, mental health services for herself nor will 
14

she maintain a stable and sober lifestyle. [¶] Given mother’s history with 

the Department, unstable housing and reported lack of follow through, it is 

the Department’s recommendation that the family receive Family 

Maintenance Services, participate in Family Preservation Services and that 

the mother participate in random drug testing, individual counseling to 

address case issues, parenting program and follow up with academic 

support services, medical appointments and Regional Center services for 

the children. Additionally, it is recommended that [Toddler] receive age 

appropriate services to address his hyperactivity and lack of focus.” 

At the hearing, mother argued that the only evidence supporting the 

petition is that she used marijuana edibles, but there was no evidence that 

either child was harmed by this. Mother also argued she is no longer using 

and has tested clean. Counsel for the children argued that the petition 

should be sustained simply because mother used marijuana while pregnant; 

she did not seek her doctor’s approval before doing so; and the children 

were of tender years. 

The court sustained the petition, but released the children to mother 

as there was no evidence that release would be detrimental to them. The 

court stated that mother “is cooperative and will be able to take care of the 

children in her home if she continues to cooperate with the Department.” 

Drug testing and family preservation services were ordered. 

Mother filed a timely notice of appeal. 

DISCUSSION

1. Standard of Review

“ ‘We review the juvenile court’s jurisdictional findings for 

sufficiency of the evidence. [Citations.] We review the record to 
15

determine whether there is any substantial evidence to support the juvenile 

court’s conclusions, and we 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 fact to make the ruling in question in light of the 

whole record.’ [Citation.]” [Citation.]’ ” (In re Drake M. (2012) 

211 Cal.App.4th 754, 763.)

2. Elements Under Section 300, Subdivision (b)

The children were declared dependent under section 300, 

subdivision (b)(1). That subdivision provides, in pertinent part, that a child 

may be declared dependent if “[t]he child has suffered, or there is a 

substantial risk that the child will suffer, serious physical harm or illness, as 

a result of . . . the inability of the parent or guardian to provide regular care 

for the child due to the parent’s or guardian’s . . . substance abuse.” The 

finding of dependency cannot be based on substance abuse alone; 

jurisdiction requires a substantial risk of harm to the child arising from the 

substance abuse. (In re Alexis E. (2009) 171 Cal.App.4th 438, 453.) 

Mother argues there is insufficient evidence of both elements – that 

is, insufficient evidence of substance abuse and insufficient evidence of 

substantial risk of harm to the children arising from substance abuse. 
16

DCFS does not separate its response with respect to the two elements, 

preferring instead a holistic approach that mother’s prenatal use of 

marijuana supported the finding of dependency. 

3. Insufficient Evidence of Substance Abuse

The law is clear that jurisdiction must be based on substance abuse; 

mere substance use is not sufficient for jurisdiction. (In re Drake M., 

supra, 211 Cal.App.4th at p. 764.) However, the law is not in agreement on 

when substance use reaches the point of substance abuse. Division Three 

of the Second Appellate District concluded that a finding of substance 

abuse must be based on evidence sufficient to show that: (1) the parent had 

been diagnosed as a having a current substance abuse problem by a medical 

professional; or (2) the parent has a current substance abuse problem as 

defined by the American Psychiatric Association’s Diagnostic and 

Statistical Manual of Mental Disorders (4th rev. ed. 2000) (DSM-IV). (Id. 

at p. 766.) Division Seven of the Second Appellate District disagreed with 

the requirement of a diagnosis or evidence establishing the requirements of 

DSM-IV. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1218.) 

Moreover, the court noted that DSM-IV had been superseded by the fifth 

version of the DSM, which has a much broader definition for substance 

abuse disorders. (Id. at p. 1218, fn. 6.)

DCFS does not argue that there is sufficient evidence of substance 

abuse under any particular standard. The failure to do so is understandable. 

The evidence of mother’s substance use is, at most, that she used edible 

marijuana while pregnant, to address her pregnancy symptoms, after having 

researched that it was a relatively safe alternative. She claims that she was 

never high or under the influence when she used it. She claims that she 
17

easily stopped using as soon as she was told to do so; her drug tests support 

this. This is not substantial evidence – or any evidence – of substance 

abuse. 

In contrast, DCFS simply assumes that mother’s use of medical 

marijuana was harmful to Baby and rendered mother under the influence 

when caring for Toddler. The argument is more speculative than 

evidentiary. There is no evidence, for example, of the type of medical 

marijuana mother used, or whether the cannabinoids for which mother 

tested positive were those with psychoactive properties or merely those 

which affect pain. While the Department is unimpressed by mother’s 

claimed research into the safety of the medical marijuana she used, it 

presented no contrary research into the risks of prenatal exposure to 

medical marijuana edibles.5

Department’s only other evidence of substance abuse is its 

assumption that, based on the prior referral, mother had an “unaddressed 

history of substance abuse.” The evidence of this – an inconclusive referral 

three years prior, contradicted by three intervening years of care for 

Toddler with no suggestions of drug use – is too insubstantial to support the 

finding.

5 The sole evidence was that, at a joint visit with a Department social 

worker and public health nurse, the nurse told mother that “as [Baby] was 

prenatally exposed, there is a possibility he may show delays when he is 

older.” 
18

4. Insufficient Evidence of Substantial Risk Arising 

From Substance Abuse

Even if we were to conclude the evidence was sufficient that 

mother’s use of medical marijuana edibles rose to the level of substance 

abuse, there is insufficient evidence that this abuse gave rise to a substantial 

risk of harm to the children.

“Although section 300 generally requires proof the child is subject to 

the defined risk of harm at the time of the jurisdiction hearing [citations], 

the court need not wait until a child is seriously abused or injured to assume 

jurisdiction and take steps necessary to protect the child [citation]. The 

court may consider past events in deciding whether a child currently needs 

the court’s protection. [Citation.] A parent’s ‘ “[past] conduct may be 

probative of current conditions” if there is reason to believe that the 

conduct will continue.’ [Citation.]” (In re Christopher R., supra,

225 Cal.App.4th at pp. 1215–1216.)

Here, the record shows no risk of harm to the children. Although 

Toddler was indisputably in mother’s care while she was consuming the 

marijuana edibles, there was no evidence of any risk to him. DCFS 

attempts to manufacture a risk based on mother’s purported failure to 

obtain the necessary speech therapy; but the evidence indicates that mother 

did have Toddler evaluated prior to the non-detention hearing, and the 

school psychologist and language and speech specialist conducting the 

evaluation concluded there was no need for therapy. To the extent DCFS 

would find a risk of harm based on mother’s failure to have Toddler 

evaluated when his pediatrician initially recommended it, the 

recommendation was in January 2018, and necessarily predated mother’s 
19

pregnancy and medical marijuana use. Therefore, mother’s delay in 

following through could not have been attributable to her consumption of 

marijuana edibles.6

DCFS is left, then, with a single fact: that Baby tested positive for 

cannabinoids at birth. Department relies on authority that prenatal 

exposure to drugs creates a presumption of dependency. (In re Christopher 

R., supra, 225 Cal.App.4th at p. 1217; In re Monique T. (1992) 

2 Cal.App.4th 1372, 1378; In re Troy D. (1989) 215 Cal.App.3d 889, 897.) 

The presumption arises not from case law, but from section 355.1. (Troy 

D., at p. 897.) The statute provides, in pertinent part that, “[w]here the 

court finds, based upon competent professional evidence, that an injury, 

injuries or detrimental condition sustained by a minor is of a nature as 

would ordinarily not be sustained except as the result of the unreasonable or 

neglectful acts or omissions of either parent, . . . that finding shall be prima 

facie evidence that the minor is a person described by subdivision (a), (b), 

or (d) of [s]ection 300.”

Application of this statutory presumption when a child is “diagnosed 

as being born under the influence of a dangerous drug,” such as morphine 

6 We reach a similar conclusion with respect to the Department’s 

concern regarding mother taking Toddler off his hyperactivity medication, 

purportedly on the advice of a psychologist. The Department may disagree 

with mother’s decision, and think it ill-advised, but does not tie it to 

mother’s medical marijuana use. Mother had ceased using medical 

marijuana by the time Toddler’s pediatrician placed him on psychotropic 

medication, and any reluctance she thereafter may have had regarding 

medicating her young child could not be attributable to her prior use of 

medical marijuana.
20

and methamphetamine, is clear. (In re Troy D., supra, 215 Cal.App.3d at 

pp. 894–895, 897.) Being born “under the influence of a dangerous drug” 

is obviously a “detrimental condition” within the meaning of the statutory 

presumption. Similarly, in Monique T., the child not only tested positive 

for cocaine at birth, she also suffered severe medical problems from the 

drug use, requiring placement in a home for medically fragile children. (In 

re Monique T., supra, 2 Cal.App.4th at pp. 1374–1375.) This, too, is 

obviously a “detrimental condition” within the meaning of the statutory 

presumption. And in Christopher R., the infant tested positive for cocaine, 

amphetamine and methamphetamine at birth, which the court held 

“unquestionably” endangered the child’s health. (In re Christopher R., 

supra, 225 Cal.App.4th at p. 1217.)

In this case, we look in vain for “competent professional evidence” 

of an “injury, injuries or detrimental medical condition” sustained by Baby 

(§ 355.1). The evidence is that the child tested positive for cannabinoids at 

birth and did not appear to be developmentally delayed. At most, there was 

a possibility that he may show delays later.

Although understandably neither DCFS nor the trial court condones 

edible marijuana use while pregnant, DCFS acknowledges there is no 

injury, and the medical condition of prenatal exposure carries only some 

unexplained degree of possible future detriment. This is insufficient to

trigger the presumption such that there is a substantial risk of harm to Baby 

from mother’s admitted prenatal consumption of marijuana edibles.
21

5. The Department’s Totality Approach Does Not 

Change the Analysis

As we have previously observed, the Department does not address 

the individual elements of substance abuse and substantial risk, but simply 

argues that, in an overall manner, the record supports the finding of 

dependency.

But the Department’s analysis does not hold up. It relies on 

authority that a parent’s substance abuse is prima facie evidence of 

substantial risk to children of tender years who require adequate 

supervision. (E.g., In re Drake M., supra, 211 Cal.App.4th at p. 766.) But, 

as discussed above, the evidence does not support a finding of substance 

abuse, so there is no prima facie evidence of substantial risk.

In summary, the only evidence is that mother used medical 

marijuana edibles during her pregnancy. There is no evidence this harmed 

either of her children. The Department relies on evidence that mother 

delayed in having Toddler’s speech assessed, but her marijuana use did not 

cause the delay and, in any event, she obtained the assessment and 

Toddler’s speech was age appropriate. The Department relies on evidence 

that mother was reluctant to put Toddler on psychotropic medication, but 

the evidence that she went against medical advice is inconclusive, and, 

again, there is no evidence that her medical marijuana use caused her 

reluctance. The Department relies on evidence that mother preferred to 

stay in grandmother’s home rather than take her children to a shelter, 

despite the social worker’s expressed concerns regarding grandmother’s 

home; but there was no evidence grandmother’s home presented a risk to 

the children, and, again, no evidence that mother’s decision was in any way 
22

impacted by her prior use of medical marijuana. Finally, the Department 

relies on evidence from a prior referral to infer mother had long-standing 

drug and mental health problems which were never addressed, yet the prior 

referral was closed as inconclusive, the petition in this case did not allege 

any mental health issues, and there is simply no evidence of drug use 

outside the medical marijuana edibles mother admitted using during 

pregnancy.

6. The Appeal is Not Moot

After briefing was completed in this matter, we advised the parties 

of our intent to take judicial notice of the trial court’s two minute orders of 

January 15, 2020, dismissing dependency proceedings. We gave the parties 

the opportunity to voice any objection. Neither party objected. 

Accordingly, we take judicial notice of the two orders.

We also directed the parties to address in supplemental letter briefs 

whether in light of the January 15, 2020 order terminating jurisdiction the 

appeal was now moot. The Department argues mootness by asserting 

dismissal of the dependency proceedings afforded mother the relief she 

sought by this appeal. Mother claims the matter is not moot because of 

potential collateral consequences to her family.

In deciding whether to dismiss an appeal as moot, we are guided by 

the general rule that “ ‘an appeal presenting only abstract or academic 

questions is subject to dismissal as moot.’ [Citation.]” (In re Jody (1990) 

218 Cal.App.3d 1615, 1621-1622.) “When no effective relief can be 

granted, an appeal is moot and will be dismissed.” (MHC Operating 

Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214 

[mobile home rent control challenge].) As the last cited case reveals, this 
23

rule is not unique to dependency proceedings. (See also Vernon v. State of 

California (2004) 116 Cal.App.4th 114, 117 [FEHA and Civil Rights 

claims].) However, even in circumstances where effective relief can no 

longer be provided to a parent appealing jurisdictional findings, because 

that parent has since been awarded custody, courts have recognized they 

retain the inherent discretion to resolve the issue where “there is a 

likelihood of recurrence of the controversy between the same parties or 

others.” (See, e.g., In re N.S. (2016) 245 Cal.App.4th 53, 59.)

We believe that this is an appropriate case in which to exercise 

discretion to address the jurisdictional errors, because the issue is one that 

is likely to recur in the future. If we fail to exercise our discretion to 

resolve the jurisdictional appeal, the Department may feel free to continue 

to pursue jurisdiction in other cases where there is no evidence of substance 

abuse, and no evidence of substantial risk – only evidence that a child was 

born testing positive for marijuana, bolstered only by vague and unproven 

concerns.

DISPOSITION

The adjudication and disposition orders are reversed.

RUBIN, P. J.

I CONCUR:

MOOR, J.
In re J.A., et al.

B297416

BAKER, J., Dissenting

The mother of the very young minors at issue in this case, four-yearold J.A. and three-month-old D.Y., ingested marijuana—daily, according to 

her admission to hospital personnel—for the last four months of her 

pregnancy with D.Y.1 No surprise, D.Y. tested positive for marijuana at 

birth. The mother claimed she used marijuana “‘as an alternative for the 

pain and swelling associated with [her] pregnancy,’” but she admitted she 

never asked her prenatal doctor whether such marijuana use was safe 

(because the doctor would have “judged her”) and instead did her own 

“research” by reading “articles online.”2 And before D.Y. was born, the 

mother twice failed to promptly follow up on medical recommendations 

(including one made in November 2018, which was during the time she 

was admittedly ingesting marijuana) that she have her older son assessed 

1 Mother also admitted to smoking cigarettes during her pregnancy.

2 Mother told the Los Angeles County Department of Children and 

Family Services (the Department) she concluded prescription medication 

would do more harm to her baby than ingesting marijuana. 
2

for speech delays.3 Despite all this, when the Department filed a 

dependency petition, the juvenile court agreed to keep the minors in the 

mother’s custody while assuming dependency jurisdiction over the minors 

to have better visibility into their welfare and provide protection against a 

substantial risk of serious physical harm.

In my view, the juvenile court’s resolution was spot on. Indeed, that 

resolution was not just the Department’s recommendation below but also 

the recommendation adopted by counsel for the minors. The majority 

nevertheless reverses—apparently of the view that mere court supervision 

of the family without removal of the children from the mother’s custody is 

unjustifiable even under the deferential substantial evidence standard of 

review that applies. Rather than catalog the ways in which the majority 

goes astray in reaching this conclusion, it suffices to observe the majority 

errs in so holding. 

BAKER, J.

3 There is also evidence in the record of the mother’s admissions, in 

connection with earlier referrals made to the Department, that she 

experienced mental health issues (including an anxiety attack in 2015 that 

resulted in her hospitalization because she wanted to kill herself by cutting) 

and attended a drug addiction program in 2016.