Los Angeles County Department of Children & Family Services v. Rosemarie H.
148 Cal. Rptr. 3d 800
Cal. Ct. App.2012Background
- DCFS investigated Destiny after an alleged sexual abuse report; investigation found unfounded but Mother admitted methamphetamine and weekly marijuana use; drug test the day of admission was positive.
- DCFS petitioned Destiny’s dependency under §300(b) based on Mother's drug use; detention left Destiny with Mother subject to weekly random drug tests; Destiny later placed with maternal grandmother after positive tests.
- At jurisdiction/disposition, Destiny appeared well-cared-for, healthy, and wished to return to Mother; school staff reported no concerns and Destiny’s behavior was good.
- Mother submitted to multiple drug tests; all were negative between November 2011 and January 2012.
- The juvenile court found a risk of substantial physical harm due to parental neglect and that Destiny could not be protected other than removal, despite evidence of no current risk.
- On appeal, the court reversed, holding there was no current evidence of risk of serious physical harm from Mother's conduct and thus no jurisdiction under §300(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was current risk of serious physical harm | Destiny at risk due to Mother's drug use | Drug use endangers health; risk persists | No current risk; jurisdiction reversed |
| Whether tardiness to school constitutes substantial risk of serious harm | Tardiness shows risk due to neglect | Past tardiness supports risk | Not a present substantial risk of serious harm |
| Whether marijuana/hard drug use alone suffices for §300(b) | Substance use endangers child; supports jurisdiction | Simple use without more not enough; need specific risk | Not enough; requires evidence of specific, substantial risk |
| Whether evidence from prior 2002 allegations supports current jurisdiction | Historical concerns show ongoing risk | Old conduct not probative of current risk | Cannot support current jurisdiction |
| Whether §300.2's negative effects standard applies | Negative effects of substance abuse justify jurisdiction | §300.2 requires risk of serious physical harm under §300(b) | Not applicable without demonstrated risk of serious harm |
Key Cases Cited
- In re Janet T., 93 Cal.App.4th 377 (Cal. App. 2001) (tardiness alone does not establish substantial risk of serious harm)
- In re Alexis E., 171 Cal.App.4th 438 (Cal. App. 2009) (marijuana use without more not jurisdictional)
- In re Rocco M., 1 Cal.App.4th 814 (Cal. App. 1991) (hard drug use alone not sufficient for §300(b))
- In re David M., 134 Cal.App.4th 822 (Cal. App. 2005) (need specific, defined risk of harm from substance abuse)
- In re Maria R., 185 Cal.App.4th 48 (Cal. App. 2010) (jurisdictional order reversed when no current risk)