40 Cal.App.5th 913
Cal. Ct. App.2019Background
- Dept. filed dependency petition under Welf. & Inst. Code §300(b) and (a) alleging parents’ drug use and domestic violence placed 3‑yr‑old J.M. and 2‑yr‑old H.M. at risk.
- Mother missed multiple drug tests and one test (Oct. 2017) was positive for amphetamine, methamphetamine, cocaine metabolite and cannabinoids; two other positive/“no‑show” tests and admissions of marijuana/ecstasy use.
- Juvenile court issued a removal order; Mother took the children and absconded, keeping their whereabouts unknown for ~9 months, thwarting Dept. monitoring.
- Children resurfaced with a maternal relative in Aug. 2018; jurisdiction hearing occurred Oct. 18, 2018. Mother and Father were not present; Dept. reported additional missed tests after return.
- Juvenile court dismissed the petition for lack of evidence of current risk at the time of the hearing; appellate court stayed that dismissal and reviewed whether dismissal was supported by substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether juvenile court may dismiss §300(b) petition for lack of "current" risk when parent’s misconduct (absconding) caused lack of recent evidence | Dept.: court should not apply the "at the time of hearing" freshness rule to bar jurisdiction when parent’s absconding prevented Dept. from obtaining current evidence | Parents: evidence of risk was stale (mostly >1 year old); no proof of ongoing risk at hearing, so petition must be dismissed | Reversed: parent cannot benefit from delay caused by absconding; court must consider pre‑absconding evidence and post‑return missed tests in assessing current risk |
| Whether substantial evidence supported finding of current risk to assume jurisdiction under §300(b) | Dept.: positive drug tests, missed tests (before and after absconding), failure to ensure medical care, tender‑age children — collectively infer ongoing impairment and risk | Parents: post‑return evidence insufficient; missed tests do not conclusively prove ongoing use; cited cases distinguishing tender‑age presumptions | Held: substantial evidence supported inference of ongoing drug use and risk (prior positives + post‑return no‑shows + children’s medical needs); court erred to dismiss |
Key Cases Cited
- In re N.S., 245 Cal.App.4th 53 (discusses rule that when §300(b) jurisdiction is based on risk, risk must exist at time of hearing)
- In re Christopher R., 225 Cal.App.4th 1210 (dependency court need not wait until actual serious abuse occurs to assume jurisdiction)
- In re L.W., 32 Cal.App.5th 840 (explains §300(b)(1) grounds where parent’s substance abuse creates substantial risk of serious harm)
- In re Nolan W., 45 Cal.4th 1217 (dependency proceedings’ overarching goal is child welfare and protection)
- In re Sheila B., 19 Cal.App.4th 187 (standard of review for juvenile court jurisdictional findings—substantial evidence)
- In re I.J., 56 Cal.4th 766 (appellate court will not reweigh evidence on jurisdictional review)
- In re Rebecca C., 228 Cal.App.4th 720 (distinguished: older child where drug use did not presumptively constitute neglect)
- In re Drake M., 211 Cal.App.4th 754 (distinguished: parent’s marijuana use did not impair caretaking because parent was not sole caretaker)