CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
In re DESTINY S., a Person Coming Under
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK90236)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
Plaintiff and Respondent,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County. Marilyn
Martinez, Juvenile Court Referee. Reversed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Denise M. Hippach, Deputy County Counsel, for Plaintiff and Respondent.
Rosemarie H., Mother, appeals from orders of the juvenile court declaring her
11-year-old daughter, Destiny S., a dependent of the court under Welfare and Institutions
Code section 300, subdivision (b),1 and placing her with her maternal grandmother.
There being no evidence that Destiny is under a current risk of serious physical harm,
the orders are reversed.
FACTS AND PROCEEDINGS BELOW
Destiny, age 11, and her mother came to the attention of the Department of
Children and Family Services in September 2011 when someone called the Department
and “alleged sexual abuse of [Destiny] by an unknown perpetrator.” The local police and
the DCFS investigated this allegation and concluded that it was “unfounded.” In the
course of the DCFS investigation, however, Mother admitted that she had a history of
using methamphetamine and marijuana. She told the DCFS worker that she smokes
marijuana on a weekly basis, but not around Destiny. She also told the worker that she
had stopped using methamphetamine “over a year ago” but a drug test the same day came
In October 2011, the DCFS filed a petition to have Destiny declared a dependent
of the court under section 300, subdivision (b) based on Mother‟s drug use. At the
detention hearing the court left Destiny in Mother‟s custody and ordered Mother to
submit to weekly random drug tests. When Mother tested positive for methamphetamine
and marijuana the court took Destiny from Mother‟s custody and placed her with her
maternal grandmother where she remained at the time of the jurisdiction and disposition
The court held jurisdiction and disposition hearings in January 2012. The
uncontradicted evidence at the hearings showed that Destiny was a healthy, happy
preteen. She told the DCFS worker that Mother “takes good care of her,” tucks her in
bed at night, plays video games with her and attends her volleyball games. She denied
All statutory references are to the Welfare and Institutions Code.
ever being physically punished or abused. She told the DCFS worker: “I want to go
back with my mom.” The principal of Destiny‟s school told the DCFS worker that she
had “„no concerns‟” about Destiny; that she has no discipline issues and attends school
regularly. Destiny‟s tardiness to school in the previous year had not reoccurred this year.
It was also undisputed that Mother had submitted to five drug tests between
November 2011 and January 2012. All were negative.
After considering the foregoing evidence the court concluded that although
Destiny is “well-cared for . . . clean [and] well-fed” she was at risk of serious physical
harm because she had often been late to class in the previous school year and her mother
was in denial as to her drug habit. The court found by clear and convincing evidence that
Destiny would be at risk of substantial physical harm if returned to Mother and there
were no reasonable means to protect her other than removing her from Mother‟s custody.
Destiny‟s placement continued with her maternal grandmother.
Mother filed a timely appeal.2
The Evidence Does Not Support The Court’s Finding Of A Risk Of Serious
Physical Harm Resulting From Parental Neglect
Under section 300, subdivision (b) the juvenile court may assert jurisdiction over a
child when “[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 failure or inability of his or her parent
or guardian to adequately supervise or protect the child[.] . . . The child shall continue to
be a dependent child pursuant to this subdivision only so long as is necessary to protect
the child from risk of suffering serious physical harm or illness.”
Here, the court did not find that Destiny had suffered “serious physical harm or
illness” but did find that “[Mother‟s] substance abuse endangers the child‟s physical
health and safety, and places the child at risk of physical harm . . . and danger.” 3
Destiny‟s father is not a party to this appeal.
The record lacks any evidence that Destiny was at risk of suffering physical harm
as the result of Mother‟s use of illegal drugs.
Tardiness To School
The court found that “when one is using drugs, one often has a difficult time being
awake” and concluded, therefore, that Mother‟s drug use “could” have been the cause of
Destiny being late to class the previous school year. Assuming that this conclusion is
supported by the court‟s “20 years on the bench, [and] training and experience,” the
conclusion is irrelevant to dependency jurisdiction under section 300, subdivision (b) or
any other subdivision of section 300. Although missing school is a “serious” problem,
“that is not the same as saying the failure to attend school created a „substantial risk‟ of
suffering „serious physical harm or illness.” (In re Janet T. (2001) 93 Cal.App.4th 377,
388-389; italics in original.) Furthermore, the undisputed facts show that Destiny‟s
frequent tardiness occurred in the previous school year. The principal of Destiny‟s
school told the DCFS worker that “„so far [in the current year] she is coming on time.‟”
The Department‟s report stated that “Destiny is not exhibiting any behavioral or
academic issues.” Jurisdiction under section 300, subdivision (b) can exist “only so long
as is necessary to protect the child from risk of suffering serious physical harm or
illness.” We fail to see how tardiness to school in the past can support a finding that
there is a present “substantial risk” of suffering serious physical harm.
The court struck the allegation that Destiny was at risk of physical “damage.”
Use Of Marijuana And Hard Drugs
It is undisputed that a parent‟s use of marijuana “without more,” does not bring
a minor within the jurisdiction of the dependency court. (In re Alexis E. (2009)
171 Cal.App.4th 438, 453; italics in original.) The same is true with respect to the use
of hard drugs. (In re Rocco M. (1991) 1 Cal.App.4th 814, 817, 825-826 [mother‟s
cocaine use standing alone was not sufficient basis or jurisdiction under section 300,
subdivision (b)]; and see In re Jeannette S. (1979) 94 Cal.App.3d 52, 59, fn. 2 [father‟s
alcoholism alone did not support jurisdiction under section 300, subdivision (b)].)
Instead, the DCFS had to present evidence of a specific, non-speculative and substantial
risk to Destiny of serious physical harm. (In re David M. (2005) 134 Cal.App.4th
822, 830 [jurisdiction under section 300, subdivision (b), reversed where mother had
continuing substance abuse problem, but there was no evidence of a specific, defined risk
of harm from mother‟s substance abuse].)
DCFS contends it produced “more” than just evidence of Mother‟s drug use.
It points to Destiny‟s statement to a DCFS worker that although she has never seen
“„the other thing that mother smokes‟” sometimes she can smell it “„but it‟s not very
much.‟”4 Based on this ambiguous statement the DCFS proclaims it has produced “direct
evidence mother failed to protect Destiny from the negative effects of secondhand
smoke.” We disagree. No evidence suggested that Destiny was at risk of imminent
physical harm caused by the second-hand smoke from Mother‟s use of marijuana. In any
event, the logical consequence of the Department‟s argument would be to remove minor
children from the homes of all smokers in Los Angeles County—regardless of what they
smoke. We know of no legal support for this proposition.
DCFS next refers us to a report it received in 2002, when Destiny was
one year old, alleging that Mother was using methamphetamine and left Destiny
unattended for long periods of time, did not bathe or feed her and that Destiny drank
Presumably the “other thing” was marijuana.
alcohol that Mother left within her reach. The Department‟s investigation at the time
showed that Destiny was in the care of her paternal grandmother who was willing to care
for her. The referral was closed on the basis that the “situation stabilized.”5
Evidence of such conduct that may have occurred nine years before the petition
under review was filed cannot support jurisdiction under section 300, subdivision (b),
which requires proof of a current risk to the child. (See discussion, ante, at p. 4.) There
is no evidence in this case that Mother‟s drug use caused her to neglect Destiny. On the
contrary, the undisputed evidence showed that at the time of this petition Destiny‟s home
was “neat and clean,” Destiny had her own bedroom “which was nicely decorated,” no
drug paraphernalia was observed in the home and the refrigerator and cabinets were
stocked with “an adequate amount of food and all of the utilities were in proper
working order.” It was also undisputed that Destiny “has no behavioral or discipline
issues and attends school regularly” and wanted “to go back with [her] mom.” As to the
allegation that Mother left alcohol where one-year-old Destiny could reach it, 11-year-old
Destiny “was old enough to avoid the kinds of physical dangers which make infancy an
inherently hazardous period of life.” (In re Rocco M., supra, 1 Cal.App.4th at p. 825.)
Finally, at the time of the jurisdictional hearing Mother had tested clean for marijuana
and methamphetamine for three months.
The DCFS claimed in a report to the court in this case that the above allegations
against Mother were “substantiated” but this appears incorrect because the Department
also states in the same report: “Referral closed as situation stabilized” and stated in a
another report to the court in this case that: “The family has no prior DCFS/Juvenile
Finally, the DCFS attempts to justify jurisdiction based on section 300.2 which
states: “The provision of a home environment free from the negative effects of substance
abuse is a necessary condition for the safety, protection and physical and emotional wellbeing of the child.” Section 300, subdivision (b), however, requires a showing of a risk
of serious physical harm resulting from Mother‟s substance abuse. Thus, the “negative
effects” referenced in section 300.2 must be of the sort likely to result in serious physical
harm. No such negative effects have been shown in this case.
Because the court lacked jurisdiction over Destiny, its jurisdictional order is
reversed and all subsequent orders are vacated as moot. (In re Maria R. (2010)
185 Cal.App.4th 48, 71.)
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, Acting P.J.