Opinion
B312469
02-14-2022
In re CHRISTOPHER H. et al., Persons Coming Under the Juvenile Court Law. v. M.C., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from jurisdictional and dispositional orders of the Superior Court of Los Angeles County, Daniel Zeke Zeidler, Judge. Los Angeles County Super. Ct. No. 21CCJP00967 1
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
BENDIX, J.
M.C. (mother) appeals from the juvenile court's jurisdictional and dispositional orders arguing that there was insufficient evidence to support jurisdiction. On appeal, we must uphold the juvenile court's jurisdictional findings if supported by substantial evidence. (In re R.T. (2017) 3 Cal.5th 622, 633.) We review the record in the light most favorable to the juvenile court's determination. (Ibid.)
Applying this deferential standard of review, we conclude substantial evidence supported jurisdiction under Welfare and Institutions Code section 300, subdivision (b) for failure to protect mother's two minor sons as demonstrated by the three-year old ingesting marijuana while under mother's care.Our standard of review is dispositive and accordingly, we affirm the jurisdictional and dispositional orders. 2
Undesignated statutory citations are to the Welfare and Institutions Code.
The juvenile court ultimately terminated jurisdiction after mother filed this appeal and participated in court-ordered services and counseling. We address the merits of this otherwise moot appeal because the juvenile court's exercise of jurisdiction might negatively impact mother in the future.
FACTUAL AND PROCEDURAL SUMMARY
1. Background
When this dependency case commenced in March 2021, Christopher was eight years old and Greyson was three years old. Mother was living in North Hollywood with Greyson and her then-fiancé, Jameson S. Christopher lived with mother on weekends.
Greyson's father, T.B. (Father B.), purportedly lives in Fresno, California. He is the subject of a criminal domestic violence protective order issued in April 2019 by the Fresno County Superior Court. The order, which expires in April 2022, protects mother, but not Greyson, from Father B. Mother has had no contact with Father B. since then and, when this case began, did not know his whereabouts. The Los Angeles County Department of Children and Family Services (DCFS) eventually determined that Father B. was on probation in Fresno and that the probationary term was set to expire on April 13, 2021. DCFS's efforts throughout the juvenile court proceedings to contact him were unsuccessful.
Christopher's father, C.H. (Father H.), lives in Visalia, California. Father H. and mother divorced in 2015 and, as of February 2021, they had joint custody of Christopher. Pursuant to an agreement between them, Christopher lived with Father H. during weekdays and visited mother on weekends.
2. Referral to DCFS
On January 22, 2021, an anonymous caller reported that mother and Jameson were selling marijuana "edibles" from their home and leaving marijuana within Greyson's reach. The caller further reported that Greyson had recently eaten a marijuana 3 edible, and mother and Jameson did not get medical attention for the child. The caller also stated that there were guns in mother's bedroom.
On February 1, 2021, a social worker made an unannounced visit to mother's home. The home was clean and there were no visible safety hazards. Mother was cooperative and showed no signs of cognitive impairment or substance abuse. She denied ever selling marijuana or other "street drugs or substances," from the home or otherwise. She also denied leaving marijuana within Greyson's reach and denied that Greyson had eaten a marijuana edible.
Mother said Jameson does not use marijuana, street drugs, or alcohol and there were no guns in the home. She denied any domestic violence between her and Jameson.
Mother told the social worker that Greyson had recently been in a fight with a neighbor's child and that the neighbor, I., had "threatened to call the Hotline for no reason except as a spiteful act of revenge."
The social worker told mother that a doctor will need to see Greyson due to the report that he had eaten a marijuana edible. Mother agreed to take him to a doctor.
The social worker interviewed Jameson, who told the social worker that he does not sell marijuana or street drugs or abuse alcohol. He said that he uses marijuana occasionally, but never in the home. He denied keeping marijuana within Greyson's reach and said that Greyson had never touched or seen "any substances." He also denied any domestic violence in his relationship with mother.
Jameson reiterated mother's explanation for the DCFS referral, saying that Greyson had been in a fight with a 4 neighbor's children and the neighbor had "threatened to call the Hotline with false allegations."
On February 2, 2021, the social worker spoke by telephone with B.C., who lives in the same apartment building as mother. B.C. said that after a fight between Greyson and another neighbor's children, the other neighbor, I., had threatened to make "false allegations" about mother and Jameson "to seek revenge in a sick manner by involving DCFS without any reason to do so." B.C. said that she had never seen mother or Jameson under the influence of drugs or alcohol and had no reason to believe that marijuana or street drugs were being used or sold from mother's home.
On February 6, 2021, the social worker made an unannounced visit to mother's home while Christopher was visiting. Christopher told the social worker that he knows what drugs and alcohol are, and denied that anyone used marijuana or street drugs in his father's or mother's home. He said he feels safe in the home of each parent. Christopher told the social worker that a" 'really tall and big'" neighbor boy, G., "picks on" Greyson.
The social worker met with mother's neighbor B.C., who added additional information regarding the neighbor whom B.C. believed reported the "false allegations" about mother. She said that" 'a small fight' between kids" led the neighbor to become "spiteful and hating" toward mother's family. B.C. said the eldest of the neighbor's children is about 5 feet 11 inches tall and "plays very rough and tries to physically hit everyone."
On February 8, mother called the social worker and reported that a urine test for Greyson was positive for marijuana. 5 According to the social worker, mother was "shaken and crying" and said she was in "absolute shock" and had no idea how this happened. In a subsequent interview, mother stated that the neighbor whom she believed made the initial report to DCFS smokes marijuana and had edibles at her house. Mother surmised that the neighbor gave Greyson a marijuana edible to get mother in trouble.
The same day, the social worker received a report that four months earlier, in October 2020, law enforcement had responded to a call about domestic violence between mother and Jameson. Jameson was the alleged aggressor. The social worker asked mother about the report. Mother explained that she was upset and argued with Jameson because she learned that Jameson's best friend had committed suicide and Jameson had not told her. Mother said Greyson was not present during the argument and Jameson was never "physical toward her."
Mother told the social worker that she never leaves Greyson or Christopher home alone with Jameson and she is always with Greyson and Christopher while Christopher is visiting or mother leaves the children with a "trusted babysitter or another trusted adult as needed."
On February 11, the social worker received written reports showing: Greyson tested positive for marijuana metabolite at a level of 20 ng/mL; mother tested negative for all substances; and Jameson tested positive for marijuana metabolites at 227 ng/mL. The next day, the social worker received a report regarding a full medical checkup for Greyson stating that all findings were normal.
On February 18, the social worker informed mother that DCFS would probably file a juvenile dependency petition based 6 on Greyson's positive marijuana test. The social worker discussed with mother the possibility of Jameson moving out of her home, and mother responded that Jameson would be moving out.
On February 26, the social worker spoke by telephone with Father H., who said he was aware of the referral allegations and that Christopher had told him that mother's neighbor's son had" 'drugged Greyson.' "
3. Juvenile dependency petition
On March 2, 2021, DCFS filed a juvenile dependency petition concerning Christopher and Greyson. DCFS alleged, under section 300, subdivisions (b) and (j), that Greyson "ingested marijuana while in the mother's care and supervision." Greyson's ingestion of marijuana "endangers the child's physical health and safety, creates a detrimental home environment and places the child and the child's sibling Christopher, at risk of serious physical harm, damage and danger."
On March 5, 2021, DCFS filed a "non-detention report" (capitalization omitted), which stated that mother's conduct constitutes "general neglect" based on Greyson's positive test for marijuana, mother's "lack of supervision at the time he ingested marijuana," and the call to law enforcement about alleged domestic violence between mother and Jameson. DCFS reported that Christopher had been released to mother and Father H.; and Greyson had been released to mother "with the condition that [Jameson] move out of the home." DCFS requested that the court make certain orders for the provision of medical and mental health services for the children.
At a hearing held on March 8, 2021, the court placed temporary custody of the children with DCFS and ordered 7 Greyson released to mother and Christopher released to mother and Father H. under DCFS supervision.
On March 30, 2021, a family court in Tulare County granted an ex parte application by Father H. awarding him sole legal and physical custody of Christopher and suspending mother's visitation rights. Father H.'s application was based in part on DCFS's allegations in this case.
On April 1, a social worker interviewed Christopher by telephone. The social worker reported that Christopher denied seeing mother or Jameson smoke anything and said that Jameson" 'is a good man.'" Christopher told the social worker that G., a 12-year-old neighbor of mother," 'is a bully and a child abuser, '" and" 'beats up Greyson all the time.'" Christopher said that while visiting mother, he would go to the neighbor's house and play with G. while mother was outside talking with her friends. G. made Christopher" 'do inappropriate stuff'" and, when Christopher" 'messes up on a video game'" makes Christopher say," 'I like to suck penis and I didn't know what penis means.'" Christopher "told mother what G. was doing to him," and mother told him not to tell Father H. because Father H. would use it against her in court. Mother also told Christopher that" '[w]e are no longer friends with them anymore.' "
Father H. informed the social worker that after he had picked up Christopher following Christopher's weekend visit with mother, Christopher told Father H. that a neighbor" 'drugged Greyson'" and the neighbor's son G." 'beats up Greyson really bad and makes him bleed.'" Christopher also said that G. makes Christopher say," 'I suck penis'" and told Christopher," 'I have a boo-boo on my penis, you have to kiss it and if you don't do it, I 8 am going to beat you up and make you bleed and I have knives.' " Christopher also told Father H. that mother had told him not to tell Father H. about these incidents because Father H. would use them against her in court.
The social worker reported that Father H. said that Christopher "was sexually assaulted" by G. DCFS makes a similar statement in the assessment/evaluation section of its jurisdiction/disposition report and in a status review report filed in October 2021. There is no evidence in our record, however, that Christopher ever reported any sexual contact between him and G.
On April 2, 2021, DCFS filed an amended dependency petition, which, as further amended by the court's interlineation, added an allegation under section 300, subdivisions (a) and (b), that mother and Father B "engaged in physical altercations, on an ongoing basis, which resulted in a [three]-year [c]riminal [p]rotective [o]rder being granted. Such violent conduct on the part of the father against . . . mother endangers the child Greyson's physical health and safety and place[s] the child Greyson at risk of serious physical harm, danger, damage and failure to protect."
DCFS supported the new allegation with mother's statements to the social worker that Father B. had assaulted her and was physically abusive to her. He had threatened to torture and kill mother and kidnap Greyson. Once, when Greyson was two months old, he" 'dangled him over a balcony.'" Mother said she left Father B. in order to protect her children. The allegation was further supported by Father H.'s statement that although Father B. once beat mother" 'so bad she had to go to the hospital and get stitches in her mouth, '" mother stayed with Father B. 9 and exposed the children to such violence. Other than the reference to Greyson's two-month age (indicating the balcony-dangling incident occurred in approximately September 2017) and the issuance of the protective order against Father B. filed in April 2019, our record does not indicate when these incidents occurred.
In its jurisdiction/disposition report, DCFS stated that the positive marijuana test for Greyson established that Greyson ingested marijuana. Although it is "not clear . . . how or where Greyson got a hold of the marijuana," and "[m]other is adamant that the neighbor . . . gave Greyson edibles," DCFS explained that "it is plausible that Greyson could have gotten into [Jameson's] marijuana." In any case, DCFS added, "the fact that a [three]-year-old child was able to ingest marijuana without mother's knowledge[ ] calls into question[ ] mother's supervisory skills. Further, it is extremely concerning that child Christopher is reporting that at the same neighbor's home, the 12-year-old son[ ] sexually assaulted him in the home and when he told mother, mother told Christopher not to tell [F]ather [H.] as he would use this against mother in [c]ourt."
4. Jurisdiction and disposition
The court held a jurisdiction hearing on April 30, 2021. DCFS submitted its detention and jurisdiction/disposition reports. Mother offered, and the court admitted, her statements in the reports "as stipulated testimony." Father H., who was a nonoffending parent, appeared through counsel and submitted to the court's jurisdiction. Father B. was not present and did not have counsel.
Mother argued that DCFS has failed to satisfy its burden of proof and the petition should be dismissed in its entirety. 10 Father H. joined mother's argument with respect to Christopher. The children's counsel argued that the petition should be sustained.
Regarding Greyson, the court sustained allegations under section 300, subdivisions (a) and (b), based on Father B.'s violent conduct, as well as an allegation under section 300, subdivision (b)(1), based on Greyson's positive marijuana test. The court declared Greyson a dependent of the court, removed Greyson from his parents, placed him in DCFS's custody, and released him to mother's home under DCFS's supervision. Mother was ordered to submit to random or on-demand drug tests and to participate in family preservation services and counseling, among other services. The court further ordered that Greyson shall "have no contact with the neighbor." (Boldface omitted.) The court set a review hearing for October 22, 2021.
As to Christopher, the court sustained the allegations under section 300, subdivisions (b) and (j), based on Greyson's positive marijuana test, and found that Christopher is a person described by section 300 subdivisions (b) and (j). Regarding disposition, the court stated that, pursuant to section 360, subdivision (b), Christopher "and or parent(s)" are placed under DCFS "supervision for a period consistent with [section] 301." 11 (Boldface omitted.) The court did not declare Christopher a dependent of the court and did not set a review hearing in his case.
The court struck the allegations in the petition referring to Father H. and stated that Father H. is "a non-offending party."
Section 360, subdivision (b) provides: "If the court finds that the child is a person described by Section 300, it may, without adjudicating the child a dependent child of the court, order that services be provided to keep the family together and place the child and the child's parent or guardian under the supervision of the social worker for a time period consistent with Section 301."
The court expressly authorized Father H. to provide the Tulare County Family Law Court with the sustained petition.
Mother filed a timely notice of appeal.
E. Postappeal events
In a report prepared for a review hearing to be held on November 3, 2021, DCFS reported that the Tulare County Family Law Court had recently given Father H. sole legal and physical custody of Christopher and modified the visitation order to allow mother supervised visits at a location in Tulare County only. According to mother, the Tulare court reportedly relied on Christopher's statement to Father H. that Christopher had recently babysat Greyson (then, four years old) because mother had to go to work. Mother denied this. The social worker spoke with Christopher about his alleged statement and Christopher explained that mother's "aunt babysits him and he babysits" Greyson. The social worker spoke with the maternal aunt, who confirmed that she helps mother by taking care of Greyson and Christopher.
Mother requested that we take judicial notice of the social worker's report for the November 3, 2021 review hearing. DCFS did not object. We grant the request.
DCFS further reported that Christopher "is no longer a part of this [c]ourt case," and that he and Father H. "have 12 successfully complied with and completed" the services provided pursuant to section 360, subdivision (b). (Boldface omitted.)
Regarding mother, DCFS reported that all "service providers have described mother to be doing her best and trying her hardest to be a good mother. None of the service providers have observed or reported any child safety concerns throughout the duration of this case. Mother is described to be very calm and loving, and Greyson has been observed to reciprocate love back for mother." Mother had successfully participated in all services required and DCFS stated that "there are no current child safety concerns at this time."
On November 3, 2021, the juvenile court issued a minute order granting mother sole legal and physical custody of Greyson to mother, with monitored visits for Father B. The court further stated that it "finds that those conditions which would justify the initial assumption of jurisdiction under . . . section 300 no longer exist and are not likely to exist if supervision is withdrawn and the [c]ourt terminates jurisdiction. Jurisdiction is terminated this date."
On November 5, 2021, we informed the parties that we proposed to take judicial notice of the November 3, 2021 minute order and invited the parties to submit briefs to address the question whether the appeal is now moot.
No one opposed our taking judicial notice of the November 3, 2021 minute order, and we do so.
In her supplemental brief regarding mootness, mother argues that the juvenile court's jurisdictional findings continue to have a negative impact on her custody and visitation rights in the family court proceedings in Tulare County. 13
DCFS responded to the request for briefing on the mootness question by stating that it agrees with mother that the appeal is not moot.
DISCUSSION
A. Mootness
Mother argues that, notwithstanding the court's termination of jurisdiction as to Greyson, the court should address the merits of her contentions regarding the court's jurisdictional findings. The findings, she contends, are pernicious and could impact current or future dependency or family law proceedings. We address the merits because of the potential future impact of the juvenile court's finding on mother.
Generally, "an order terminating juvenile court jurisdiction renders an appeal from a previous order in the dependency proceedings moot." (In re C.C. (2009) 172 Cal.App.4th 1481, 1488.) Dismissal for mootness is not automatic, however, but" 'must be decided on a case-by-case basis.'" (Ibid.) A court may consider the merits when, for example, a juvenile court finding "creates the possibility of prejudice in subsequent family law proceedings." (Id. at p. 1489.)
Here, mother and Father H. have a pending family court proceeding in Tulare County involving custody of Christopher, which has been impacted by the juvenile court proceeding in this case. In March 2021, Father H. relied in part on DCFS's allegations in this case to obtain ex parte relief in the Tulare County Family Law Court awarding him sole legal and physical custody of Christopher and suspending mother's visitation rights. When the juvenile court sustained DCFS's allegations against mother in April 2021, the court expressly authorized Father H. to 14 provide the Tulare County Family Law Court with the order, which arguably could weaken mother's position in the custody proceedings. We therefore exercise our discretion to address the merits of mother's arguments.
B. Sufficiency of the Evidence
Mother's challenge to the sufficiency of the evidence to support the juvenile court's jurisdictional findings is unpersuasive." 'We review the trial court's findings for substantial evidence. [Citation.] We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. [Citation.] [¶] Substantial evidence must be of ponderable legal significance. It is not synonymous with "any" evidence. [Citation.] The evidence must be reasonable in nature, credible, and of solid value. [Citation.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.' [Citation.]" (In re Travis C. (2017) 13 Cal.App.5th 1219, 1225.) If substantial evidence supports jurisdiction on one ground, we need not and do not assess whether the evidence also supports jurisdiction on other grounds. (In re I.J. (2013) 56 Cal.4th 766, 773.)
Here, substantial evidence supported the juvenile court's jurisdictional order under section 300, subdivision (b). Jurisdiction under section 300, subdivision (b)(1), applies where "[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 . . . to adequately 15 supervise or protect the child . . . ." (§ 300, subd. (b)(1).) The petition alleged under section 300, subdivision (b)(1) that Greyson ingested marijuana while under mother's supervision and that both Greyson and Christopher were at risk of serious physical harm.
The undisputed evidence showed that three-year-old Greyson ingested marijuana while under mother's supervision. Allowing a three year old access to marijuana while under the parent's supervision supported dependency jurisdiction. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 983.) Division Eight of our district explained: "Leaving drugs or drug paraphernalia within the child's reach is an example of negligent conduct that will support section 300, subdivision (b) dependency jurisdiction." (Yolanda L., at p. 993; see People v. Perez (2008) 164 Cal.App.4th 1462, 1473.) Here, Greyson not only had access to marijuana, he also actually ingested it.
The undisputed evidence that mother's failure adequately to supervise and protect Greyson resulting in Greyson ingesting marijuana constituted substantial evidence in support of jurisdiction. The evidence also supported the juvenile court's conclusion that then eight-year-old Christopher was at risk of harm. Although Christopher was older than Greyson, at eight years old, he still required mother's supervision to protect him. "The court need not wait for disaster to strike before asserting jurisdiction. [Citation.] This is why the statute uses the word 'risk.'" (In re K.B. (2021) 59 Cal.App.5th 593, 603.)
Mother argues that Greyson's ingestion of marijuana was an isolated incident and that dependency jurisdiction is not warranted based on a single incident absent "current risk." Even if we assume arguendo that Greyson ingested marijuana only 16 once, concerns with I. and her son were not isolated. I.'s son G. made Christopher say," 'I suck penis'" and told Christopher," 'I have a boo-boo on my penis, you have to kiss it and if you don't do it, I am going to beat you up and make you bleed and I have knives.'" I.'s son also beat up Greyson. Mother herself recognized that I.'s son G. was "rough" with Christopher and Greyson and according to mother, G." 'tried to molest'" Christopher.
This evidence shows mother's failure to protect her children was recurring even if it arguendo led to Greyson ingesting marijuana only once. Mother's blaming her neighbor, without recognizing her own role in Greyson's ingestion of marijuana, showed an ongoing risk because it reflected a lack of insight in how to protect her children. Mother's telling Christopher "not to tell father" of G.'s inappropriate conduct also showed an ongoing risk because it supported the inference that mother would hide potential risks to the children rather than protect them.
The dissent suggests that DCFS would not be involved at all if mother's neighbor I. had not made "false allegations." Although mother and Jameson believed I. reported the abuse, the record does not confirm that belief and the trial court was not required to credit it. Importantly, the allegation that Greyson ingested marijuana was not a "false allegation." The dissent also suggests that mother was not "involved" in Greyson's ingestion of marijuana. Mother's lack of involvement shows her failure to protect her three year old from harm at a time when she was supervising him. (Dissent post, at p. 3.)
The dissent also maintains that Christopher's report of sexually abusive comments by I.'s son should not be considered. Those comments were relevant because they demonstrate 17 mother's lack of insight and the resulting risk of future harm, especially because mother told Christopher to keep the comments secret. Our standard of review requires us to consider the evidence in the light most favorable to the juvenile court's order.
Mother did not testify at the jurisdictional hearing, and based on the record, the juvenile court could have concluded that, at the time of that hearing, mother had not yet learned to protect her children. Put differently, it was reasonable for the juvenile court to exercise jurisdiction and order mother to participate in services and counseling to give mother the skills and insight needed to protect both her children. The fact that ultimately, it terminated jurisdiction is not determinative of whether substantial jurisdiction supported juvenile court jurisdiction.
We have considered the record at the time of the jurisdictional hearing. We agree with the dissent that since the jurisdictional hearing, mother has demonstrated "there are no current child safety concerns . . . ." Mother enrolled in parenting classes and individual counseling. DCFS reported that mother learned to be more "cautious" and to limit the persons with access to her children. Additionally, "[a]ll service providers . . . described mother [as] doing her best and trying her hardest to be a good mother. None of the service providers have observed . . . any child safety concerns . . . ." Mother's postjurisdiction conduct appropriately resulted in the juvenile court terminating jurisdiction and awarding mother sole custody of Greyson. That evidence postdating the jurisdictional hearing, however, does not demonstrate that the juvenile court erred in its initial assumption of jurisdiction. 18
DISPOSITION
The juvenile court's jurisdictional and dispositional orders are affirmed.
I concur: CRANDALL, J. [*] 19
ROTHSCHILD, P. J, Concurring and Dissenting.
I adopt the majority's factual and procedural summary and concur in the majority's conclusion that this appeal is not moot.
Because I conclude that there is insufficient evidence to support the court's jurisdictional findings, I respectfully dissent to part B of the Discussion in the majority's opinion.
A. Jurisdiction Based on Greyson's Positive Marijuana Test
Mother and a neighbor, I., had been close friends until they had an "an altercation" and a" 'falling out.'" After the altercation, I. sent Mother "a 'threatening text' saying that something bad was going to happen to her family." Another neighbor reported that I. had threatened to make "false allegations" about Mother and Mother's fiancé, Jameson S., "to seek revenge in a sick manner by involving [the Los Angeles County Department of Children and Family Services (DCFS)] without any reason to do so." Jameson also reported that the neighbor had "threatened to call the Hotline with false allegations."
Soon after I. made her threats, DCFS received an anonymous call reporting that Mother and Jameson were selling marijuana "edibles" from their home and leaving marijuana within Greyson's reach. The caller further reported that Greyson had recently eaten a marijuana edible, and Mother and Jameson did not get medical attention for the child. The caller also stated that there were guns in Mother's bedroom.
DCFS investigated the caller's claims and found no evidence of marijuana, drug paraphernalia, or guns in Mother's 20 house. Mother did not use marijuana. Although Jameson used marijuana outside the home, there was no evidence that he or Mother had ever kept marijuana in the home or left it within Greyson's reach. The social worker asked Mother to have Greyson tested for marijuana, and Mother readily agreed.
Nine months after this case began, DCFS acknowledged that "[n]one of the service providers have observed or reported any child safety concerns throughout the duration of this case."
When Mother was informed that Greyson had tested positive for marijuana, she immediately reported the results to DCFS and, according to a social worker, was "shaken and crying," and in "absolute shock." Although she stated at the time that she "had absolutely no idea how this happened," Mother later surmised that I. had given Greyson a marijuana edible when Mother allowed I. into her home under the false pretense that I. needed to use Mother's bathroom.
On April 1, 2021, Christopher told a social worker that," 'Mommy said that [I.] drugged Greyson. I wasn't there but [I.] was the only one who knew about it. She lied to my mom and said she had to use the bathroom and she drugged Greyson.'" Although the statement indicates that Mother told Christopher that she believed I. gave Greyson an edible after gaining access to their home to use the bathroom, it does not appear from our record that the social worker followed up with Mother regarding this statement.
Based on the toxicology test, DCFS alleged, under Welfare and Institutions Code section 300, subdivision (b), that Greyson "ingested marijuana while in the mother's care and supervision," and that "[s]uch a detrimental and endangering situation 21 established for the child by the mother endangers the child's physical health and safety, creates a detrimental home environment and places the child and the child's sibling[, ] Christopher, at risk of serious physical harm, damage and danger." The court sustained the allegation.
Unless otherwise indicated, unspecified statutory references are to the Welfare and Institutions Code.
The allegation that Greyson ingested marijuana is supported by Greyson's positive test for marijuana. Because Mother is Greyson's custodial parent, the court could reasonably conclude that Greyson ingested the marijuana while under her care. There is, however, no evidence that Greyson ingested marijuana more than once, that Mother was involved in or aware of Greyson's one-time ingestion of marijuana, or that there was ever any substantial risk that it would happen again.
The majority points to Mother's statement to a social worker that she was aware that a neighbor "smokes marijuana and had edibles at her house," yet Mother allowed Greyson to play in the neighbor's home with I.'s son. (Maj. opn. ante, at p. 6.) There was no evidence, however, that Greyson was ever exposed to marijuana or marijuana smoke while playing in I.'s home, or that any child had access to marijuana in I.'s home. The fact that a parent of a child's playmate uses or possesses marijuana does not, without more, create a "substantial risk that the child will suffer . . . serious physical harm or illness." (§ 300, subd. (b)(1).) 22 Although evidence that a parent was aware that a neighbor's parent smokes marijuana in the children's presence or leaves marijuana edibles within reach of children may support a finding of parental neglect in some other case, there is no such evidence in this case or any reason, prior to the incident in this case, to suspect I. of such use or of allowing any child to have such access to edibles.
The evidence in this case suggests no more risk to Greyson of being exposed to marijuana than the risk of being exposed to alcohol in the home of a neighbor with parents who drink responsibly and store liquor in a cabinet. I am unaware of any case in which being allowed to play in the home of the friend under these circumstances will support juvenile court jurisdiction over the child.
Moreover, even if allowing Greyson to play with I.'s children at their home with the knowledge that I. uses and possesses marijuana could have created substantial risk of serious physical harm to Greyson, by the time Mother learned of the positive toxicology results and suspected that I. gave an edible to Greyson in carrying out her threat against Mother, the children were no longer playing with I.'s children. Thus, even if there was such a risk at some point, there was no substantial risk of exposure to I.'s marijuana by the time of the jurisdiction hearing. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [there must be some reason to believe the acts that created a substantial risk of harm may continue in the future].)
The majority states that the jurisdictional requirement of substantial risk of harm in the future is supported by Christopher's reports that I.'s son had made comments to him of a violent and sexual nature, and that I.'s son had beat up Greyson. (Maj. opn. ante, at pp. 16-17.) The majority further relies on Christopher's statement that Mother asked Christopher "not to tell [F]ather" about the neighbor boy's acts. DCFS did 23 not, however, allege such acts as a basis for jurisdiction and, therefore, they cannot support jurisdiction.
It is not clear from our record when I.'s son made these statements or when Mother told Christopher "not to tell [F]ather." According to DCFS, "Christopher provided inconsistent statements to [the social worker] with regards to when the situation took place."
A dependency petition must include a "concise statement of facts, separately stated, to support" the juvenile court's jurisdiction over the child. (§ 332, subd. (f).) Here, the pertinent allegation consists of the concise statement that Greyson "ingested marijuana while in the mother's care and supervision [and] . . . had a positive toxicology result for marijuana." No other facts are alleged. The statutory factual allegation requirement "is fundamental to due process" and "necessary to enable the parties to properly meet the charges." (In re Jeremy C. (1980) 109 Cal.App.3d 384, 397.) "Accordingly, [a] court [cannot] properly consider unalleged actions in making the jurisdictional finding." (In re J.O. (2009) 178 Cal.App.4th 139, 152, fn. 13, overruled on another point in In re R.T. (2017) 3 Cal.5th 622, 628.) Indeed, it does not appear from our record that the court improperly considered or relied on any statements in the social worker's reports concerning the neighbor boy's conduct or Mother's direction to Christopher "not to tell [F]ather"; it is only the majority that does so here. In any event, the neighbor boy's conduct and statements cannot, consistent with Mother's due process rights, be used by the juvenile court or this court to support jurisdiction in the absence of any factual allegations related to such conduct. Moreover, even if such acts had been alleged and evidence of Christopher's statements could be considered, Mother, upon being informed of the neighbor boy's conduct, told Christopher that "[w]e are no longer friends with 24 them," and there is no evidence that Mother has allowed any further contact between her children and the offending neighbor. There is thus no substantial risk that I.'s son will harm her children in the future.
The majority relies on In re Yolanda L. (2017) 7 Cal.App.5th 987 and People v. Perez (2008) 164 Cal.App.4th 1462 for support. Both are distinguishable. In Yolanda L., dependency jurisdiction was upheld based on evidence that three pounds of methamphetamine were found in the child's father's car, that the father was involved in drug trafficking, and that father stored a loaded nine-millimeter semiautomatic gun in "such a manner that it could be accessed by a child." (In re Yolanda, supra, at p. 995.) In Perez, the court affirmed the defendant's conviction of willfully causing or permitting a child to be injured under Penal Code section 273a, subdivision (b), where there was evidence that the defendant left heroin "within a four-year-old child's reach and . . . accessible to [the child]." (People v. Perez, supra, at p. 1473.) Here, by contrast, there is no evidence that Mother left marijuana or drugs within Greyson's reach or that she knew the neighbor possessed marijuana accessible to a child.
For the foregoing reasons, I conclude that the evidence is insufficient to support the jurisdictional finding based on Greyson's marijuana exposure under section 300, subdivision (b). Because the sibling abuse allegation made under section 300, subdivision (j) depends upon the truth of the marijuana-related allegation under section 300, subdivision (b), I conclude that the true finding on that allegation fails as well. 25
B. Jurisdiction Based on Father B.'s Violence
Because the majority concludes that there is sufficient evidence to support juvenile court jurisdiction based on Greyson's ingestion of marijuana, it does not reach the court's further findings sustaining the jurisdiction allegations based on Father B.'s violence. I conclude that the evidence is insufficient to support such findings.
The court found true allegations under section 300, subdivision (a) and (b) based upon Father B.'s "violent conduct," which "endangers [Greyson's] physical health and safety and place[s] [him] at risk of serious physical harm, danger, damage and failure to protect." The evidence supporting these allegations consists of Mother's report that Father B. once" 'dangled [Greyson] over a balcony'" when Greyson was two months old and, at unspecified times, Father B. was physically abusive toward Mother and had threatened to torture and kill her. Father H. also reported that although Father B. once beat Mother" 'so bad she had to go to the hospital and get stitches in her mouth, '" Mother "stayed with [Father B.] and exposed the children to th[e] violence."
Juvenile court jurisdiction under section 300, subdivision (a) exists when the court finds that the child "has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian." To establish jurisdiction under this subdivision, "DCFS was required to show by a preponderance of the evidence that' "circumstances at the time of the hearing subject the minor to the defined risk of harm." '" (In re Nathan E. (2021) 61 Cal.App.5th 114, 122.) 26
Here, there is no evidence that Greyson had suffered any serious physical harm as a result of any actions by Father B. As for whether there is a substantial risk of such harm in the future, the evidence indicates that the balcony-dangling incident took place in about September 2017-when Greyson was two months old-approximately three and one-half years before the jurisdiction hearing in this case. There is no evidence of any other incidents between Father B. and Greyson. Nor is there any evidence as to when Father B. was abusive or violent toward Mother. Because Mother obtained a domestic violence protective order against Father B. in April 2019, and there is no evidence that Father B. has committed any abuse, violence, or threats against Mother since then, the most recent abuse and violence toward Mother apparently occurred at least two years before the jurisdiction hearing. Indeed, it appears from our record that Father B. has had no contact of any kind with Mother or Greyson in the two years preceding the hearing. Under these circumstances, the evidence is insufficient to support the court's finding that there is a substantial risk of harm to Greyson from Father B.
Juvenile court jurisdiction under section 300, subdivision (b)(1) exists when, as is relevant here, "[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, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left." As with jurisdiction under section 300, subdivision (a), the specified risk of harm must exist at the time 27 of the jurisdiction hearing. (See, e.g., In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134; In re Rocco M., supra, 1 Cal.App.4th at p. 824.)
My discussion above of the sufficiency of the evidence supporting the allegation under section 300, subdivision (a) applies equally here. Since at least April 2019, Father B. has had no involvement in Greyson's and Mother's lives, and the evidence of his actions prior to that time is, without more, insufficient to support the court's finding of the requisite substantial risk existing at the time of the jurisdiction hearing.
C. Conclusion
Because there is insufficient evidence to support any of the jurisdictional allegations, I would reverse and vacate the court's jurisdictional findings. 28
[*] Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.