In re B.D.

Filed 6/6/24 Certified for Publication 6/28/24 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

B327625

In re B.D. et al., Persons

Coming Under the Juvenile (Los Angeles County

Court Law. Super. Ct. No. 22LJJP00221A–B)

LOS ANGELES COUNTY

DEPARTMENT OF

CHILDREN AND FAMILY

SERVICES,

Plaintiff and Respondent,

v.

Brittany B.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles

County, Donald Buddle, Judge. Reversed.

Paul Couenhoven, under appointment by the Court of

Appeal, for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy,

Assistant County Counsel, and Stephen Watson, Deputy County

Counsel, for Plaintiff and Respondent.

‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

Brittany B. (mother) appeals from juvenile court orders

finding her two children, B.D. and C.D., are persons described by

Welfare and Institutions Code section 300, subdivision (b), and

placing them under the supervision of the Los Angeles County

Department of Children and Family Services (DCFS).1 The

juvenile court sustained a petition based on allegations that C.D.

was born with a positive toxicology screen for opiates, and that

mother’s substance abuse placed both children at substantial risk

of serious physical harm. On appeal, mother contends the

evidence was insufficient to support the court’s jurisdictional

findings. We agree and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On April 26, 2022, DCFS received a referral reporting that

mother had tested positive for opiates. She had also tested

positive for marijuana and hydrocodone six months earlier, at her

first prenatal care visit, in October 2021. On April 27, a DCFS

social worker interviewed mother in the hospital. Mother said

the week before giving birth she was experiencing back pain

related to her sciatic nerve. She explained that her aunt gave her

1 All further undesignated statutory references are to the

Welfare and Institutions Code.

2

a Norco pill.2 Mother claimed this was the only time she took the

medication during her pregnancy.

Mother informed the social worker that she had received

prenatal care while pregnant with C.D. She admitted testing

positive for marijuana and opiates at her first prenatal care visit.

Mother said she was unaware that she was pregnant when she

used the marijuana and, at the time, she had taken Norco to

alleviate her back pain. The Norco was prescribed to her after an

oral surgery. According to mother, the doctor providing her

prenatal care did not express concern about the positive drug

test. Mother stopped using marijuana when she found out she

was pregnant and did not use Norco again until the week before

giving birth. When asked if she would be willing to drug test for

DCFS, mother said she did not understand why she would be

asked to test and would only do so if it was “a requirement.”

The social worker also asked mother about her older child,

B.D. Mother said B.D., then three years old, was up to date with

immunizations and physicals. B.D. received regular medical and

dental care.

Mother was attentive to C.D. and was bonding well with

him. She fed and soothed him. A nurse told the DCFS social

worker that the drug screening completed at the hospital did not

provide the levels of drugs in mother’s system. C.D.’s urine

sample was negative for substances. C.D. was born by cesarean

section and mother had been prescribed Percocet for pain.

According to the nurse, C.D. had not displayed any symptoms of

withdrawal. A hospital social worker reported that mother was

“open and forthcoming” with the information that she had taken

2 At the jurisdiction hearing, mother agreed with DCFS’s

counsel that Norco is a brand name for hydrocodone.

3

“something” for back pain prior to C.D.’s birth. The hospital

social worker also indicated mother had tested positive for

marijuana and hydrocodone at her first prenatal care visit.

Mother had denied having a prescription for hydrocodone and

said she got it from a friend. She told the hospital social worker

that she used “the drugs” recreationally prior to discovering that

she was pregnant.

On May 2, the social worker visited mother and the

children at home. Their apartment was clean, well-organized,

and “in good condition.” There was “plenty [of] clothing and

shoes for the children in the closet,” “plenty of infant essentials,”

and ample food in the refrigerator, freezer, and cabinets. There

were no visible safety hazards in the home.

Mother and the social worker again discussed mother’s

positive drug tests at C.D.’s birth and at her first prenatal care

visit. Mother again said she took pain medication for her back

pain and, had she known it would trigger a DCFS investigation,

she would not have taken it. Mother “expressed that she felt like

she was accused of being a drug addict and expressed distrust of

the department.” She again indicated she would only drug test if

it was required of her.

On May 4, DCFS received the results of drug testing

performed on C.D.’s meconium. The test was positive for

hydromorphone and hydrocodone. A “client services” contact

from United States Drug Testing Laboratories told the social

worker the test results did not allow him to provide information

regarding the time of use of the drugs, dosage, or frequency of

use. He also could not confirm if the results were consistent with

the use of Norco.

4

On May 19, the social worker informed mother that DCFS

intended to open a case and seek court supervision. Mother

denied being a drug user. She said there had been no concerns

about C.D. at the hospital and he was “perfectly fine.” The social

worker again asked if mother would be willing to drug test for

DCFS. Mother said she would need to speak to an advisor first.

A few days later, the social worker interviewed the

maternal grandmother. The maternal grandmother saw mother

and the children three to four times a week. She had no concerns

about mother’s care of the children. Maternal grandmother was

not aware of mother using drugs or alcohol. She indicated she

gave mother “half of her pain medication” a week before C.D. was

born because mother was having bad back problems. Maternal

grandmother did not believe mother abused any drugs or

medications. According to maternal grandmother, mother used

to smoke marijuana, but she stopped when she found out she was

pregnant.

On May 27, the social worker made another scheduled visit

to mother’s home. B.D. appeared comfortable in the home. She

was dressed in clean clothing and was “well groomed.” Mother

was very attentive to C.D. The home was clean and organized.

Mother expressed disbelief that taking pain medication could

result in DCFS opening a case. She regretted that she had taken

Norco for her back pain and said it was a mistake. She insisted

that her use of the drug was limited to the time before she

learned she was pregnant and once in the week before C.D. was

born. She denied using Norco or any other substances during her

pregnancy. The social worker once again asked if mother was

willing to submit to drug testing. Mother said she would test if it

were court-ordered.

5

On June 2, a Pharmatech lab technician informed the

social worker that Norco will show up on a drug test between 20

to 24 hours in the blood and for up to three days in urine samples

after the last use. The lab technician opined that “ ‘based on the

low levels’ ” of hydromorphone and hydrocodone from C.D.’s

meconium test, “it could have been a result of a onetime use by

the mother near the time of the child’s birth.”

On June 6, DCFS filed a petition alleging the children were

persons described by section 300, subdivision (b), as a result of

mother’s failure or inability to adequately supervise or protect

them, and due to mother’s inability to provide regular care due to

her substance abuse. The petition alleged mother had a history

of substance abuse and was a current abuser of opiates,

hydromorphone, hydrocodone, Norco, and marijuana. DCFS did

not seek to detain the children. At the initial hearing on June 20,

the court authorized DCFS to provide mother with a drug testing

referral.

On July 7, mother tested positive for hydrocodone and

hydromorphone. She did not submit to any further drug testing.

A report prepared for an August 2022 jurisdiction and

disposition hearing indicated that a dependency investigator

visited the family on July 14. B.D. was friendly and talkative.

She did not have any visible marks or bruises. C.D. was alert

and comfortable with mother. He also had no visible marks,

bruises, or rash. Mother told the investigator that C.D. had not

spent time in the NICU or an incubator when he was born.

Instead, “everything was completely normal with him.” She

indicated C.D. experienced no signs of withdrawal at birth, or in

the three days they spent in the hospital after he was born.

6

Mother admitted she had taken opiates a few days before

her cesarean section and that the drugs were not prescribed to

her. She said she got the medication from the maternal

grandmother. She took it for sciatica nerve pain. Mother denied

having a substance abuse problem, indicating she had never gone

to a drug rehabilitation program, or been arrested for substance

use issues. She repeated that the positive test for marijuana and

opiates at her first prenatal care visit resulted from her use of

those drugs before she knew she was pregnant, including Norco

she was prescribed after having dental work done earlier in 2021.

Mother admitted she used marijuana before she got pregnant but

denied she had ever been impaired. She denied taking any

“ ‘street drugs.’ ”

As to the positive July 7 test, mother said she took some of

the pain medication she was “released with.” She explained: “ ‘I

was going through a miscarriage and it relieved my pain.’ ” The

report offered no further details.

The report incorporated the detention report interviews

with the maternal grandmother, the hospital nurse, and the

hospital social worker. There were no updated or additional

interviews with anyone other than mother. Two pages of a three-

page “patient history report” from Rite Aid were attached to the

report, appearing to reflect that mother was prescribed a three-

day supply of hydrocodone acetaminophen in January 2021, and

a two-day supply of oxycodone acetaminophen in late April 2022,

a few days after C.D. was born.

In assessing the children’s safety in the home, the report

referenced mother’s positive drug tests during pregnancy and at

C.D.’s birth, as well as C.D.’s positive toxicology at birth as

reflected in the meconium test. The report further noted that

7

although mother reported she used pain medication one week

before giving birth to C.D., the lab technician had indicated the

medication would show positive in a urine sample “up to 3 days

from last use.” The report additionally indicated that while

mother initially said her aunt gave her the medication she took

the week before she gave birth, the maternal grandmother said

she had given it to mother.

A November 2022 last minute information report indicated

mother continued to refuse to drug test. According to the report,

mother stated “her attorney informed her she does not have to

drug test; therefore, it cannot be determined whether mother

continues to abuse substances.” Mother also declined family

preservation services. A December 2022 last minute information

reported DCFS’s concerns that mother still refused to drug test;

she “minimize[d] concerns with her use of prescription

medication”; maternal grandmother also minimized mother’s use

of prescription medication; and mother had rejected all of the

services DCFS had recommended, including parenting services,

“Parents in Partnership,” and connection to a DCFS cultural

broker.

The jurisdiction and disposition hearing took place in

January 2023. The dependency investigator testified he had

visited mother once, in July 2022. The continuing social worker

should have visited mother monthly, consistent with DCFS’s

standard practice, but the investigator had not confirmed if that

had happened. During his July 2022 visit, the investigator had

no concerns with the condition of mother’s home or with her care

of the children on that date. It was his understanding that

mother cooperated with monthly home visits. In conversations

with the supervisor on the case, the investigator was informed of

8

concerns that mother had not participated in programs DCFS

offered and had not submitted to drug testing. Outside of those

issues, he had not been informed of any safety concerns related to

mother’s care of the children. In recommending family

maintenance services, the investigator considered the “positive

test”; that DCFS was not getting any other drug test results from

mother; and “there was [an] admitted history of abusing

prescription pain medication.” The investigator testified that he

asked mother if she felt her use of prescription opiates was an

issue, and she said it was not.

Mother also testified. She denied ever admitting that she

had abused opiates or any other drugs. Neither child had

significant medical needs. Mother had support from her mother,

her two grandparents, her sister, her aunt, and the children’s

father. According to mother, a DCFS social worker visited her

home twice a month. She made the home and the children

available during those visits. She had provided the children’s

medical information to the social worker. She testified that C.D.

had eczema, and she was working with his doctor to treat it. B.D.

was excelling in school.

Mother testified that she last used marijuana before she

was pregnant with C.D. She would smoke it, but never in the

daytime, and she was never inebriated. At the time, she was

living with the maternal grandmother, who was home when

mother smoked. Mother denied any current use of illegal

substances or non-prescribed or prescribed medications. She

admitted using a non-prescribed opiate during the week or a

week before C.D.’s due date. She was having sciatic nerve

problems at the time, was in a lot of pain, and thought taking the

medication would be “unharmful.” She got the Norco from the

9

maternal grandmother. Mother testified that taking the

medication “wasn’t wise,” she wished she had not done it, she had

not taken any medication when pregnant with B.D., and she

would not take such medication again if she was pregnant.

On cross-examination, mother denied ever receiving pain

medication from her aunt or her friends. She testified that her

dentist prescribed her hydrocodone acetaminophen, or Norco, in

January 2021. She also testified that she was prescribed

oxycodone acetaminophen, or Percocet, a few days after C.D. was

born. In closing arguments, DCFS’s counsel argued this

testimony demonstrated mother’s dishonesty about the source of

the pain medication she had taken. The meconium test results

and mother’s July drug test were positive for hydromorphone,

which, counsel represented, is not an ingredient in Norco or

Percocet. Counsel asserted this discrepancy “raises concern that

either mother is not being honest about what she is taking or she

is not aware of which medication that she is taking at what point

or where those medications came from.”

The juvenile court amended the petition to conform to

proof, adding an allegation that mother tested positive for

hydrocodone and hydromorphone on July 7, 2022. The court then

sustained the petition. The court declared the children to be

dependents of the juvenile court and ordered that they remain in

the home of the parents, under DCFS supervision.3 The court

ordered DCFS to provide mother family maintenance services,

3 Although the court ordered the children “home of parents,”

the record indicates father did not live with mother and the

children. Father was not named in the petition, declined to

participate in the proceedings below, and is not a party to this

appeal.

10

including weekly drug testing that would switch to biweekly

testing once mother submitted four consecutive negative drug

tests. Mother timely appealed.

DISCUSSION

I. Applicable Legal Principles and Standard of Review

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

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

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.]” ’ [Citation.]” (In re J.A. (2020) 47 Cal.App.5th 1036,

1046 (J.A.).)

As relevant here, under section 300, subdivision (b), a child

may be subject to dependency jurisdiction if the child has

suffered, or there is a substantial risk the child will suffer,

serious physical harm or illness as a result of a parent’s failure or

inability to adequately supervise the child, or as a result of a

parent’s inability to provide regular care for the child due to the

parent’s substance abuse. (§ 300, subd. (b)(1)(A) & (D).)

11

II. Substantial Evidence Did Not Support the

Jurisdictional Findings

Mother first argues the evidence did not support the

juvenile court’s finding that she engaged in substance abuse.

Although the evidence was far from overwhelming, it does not

wholly support mother’s argument. Mother tested positive for

hydrocodone at her first prenatal visit in October 2021. Shortly

before she gave birth to C.D., mother used a prescription drug

that was not prescribed for her, leading to her and C.D. testing

positive for opiates when he was born. Mother’s explanation of

her use of pain medication at that time was undermined by the

drug test results showing the presence of a substance—

hydromorphone—which did not appear to correspond with the

medication she said she received from the maternal grandmother.

Despite insisting that she did not abuse prescription

medication, mother declined to drug test voluntarily.4 In the one

drug test she did take, three months after C.D.’s birth, she again

tested positive for opiates. Although mother had received a

prescription for oxycodone acetaminophen months earlier, she

4 As the court explained in In re E.E. (2020) 49 Cal.App.5th

195, 202 (E.E.), before the court asserts dependency jurisdiction

over a child, it cannot order parents to submit to drug testing. A

parent’s participation in services at this stage of the proceedings

is voluntary. (Id. at p. 209.) Nonetheless, one reasonable

inference from a parent’s refusal to submit to drug testing at the

agency’s request, knowing that the agency is attempting to

confirm or rule out substance abuse, is that the parent fears such

tests would be positive. (In re Natalie A. (2015) 243 Cal.App.4th

178, 186 [father’s failure to drug test created reasonable

inference that his marijuana use was more frequent than he

admitted].)

12

tested positive for hydrocodone and hydromorphone, suggesting

she had again taken medication that was not prescribed for her.

Further, that mother had done so, while knowing that DCFS was

investigating her family because of her use of prescription drugs,

opened the door to an inference that she was unable to abstain

from using the drugs. (E.E., supra, 49 Cal.App.5th at p. 214

[juvenile court could reasonably disbelieve mother’s claim that

she was no longer using drugs given her implausible denial of the

extent of drug use while pregnant, evasive behavior, and

resistance to monitoring and services].)

However, even assuming the above evidence was sufficient

to support the conclusion that mother was abusing prescription

drugs, that did not end the jurisdictional analysis. “Even with

sufficient proof of substance abuse, the government also bears the

burden of proving by a preponderance of the evidence . . . that

this abuse makes the parent . . . unable to provide regular care

for a child, and that this inability has caused a child to suffer

serious physical harm or illness or places the child at substantial

risk of serious physical harm or illness.” (In re N.R. (2023) 15

Cal.5th 520, 550 (N.R.).) We need not determine whether the

record before the juvenile court was sufficient to support a

finding of substance abuse because, even if it was, the evidence

was insufficient to support a finding of serious physical harm, or

a substantial risk of serious physical harm to the children.

A. There was no substantial evidence that C.D.

suffered serious physical harm or illness

The juvenile court sustained an allegation that C.D. “was

born suffering from a detrimental condition consisting of a

positive toxicology screen for opiates . . . . Such condition would

not exist except as the result of unreasonable acts by [mother],

13

placing the child at risk of physical harm and damage. The

mother’s substance abuse endangers the child’s physical health

and safety and places the child at risk of serious physical harm,

damage, and danger.”

As DCFS asserts on appeal, several courts have concluded

that a newborn’s positive toxicology for drugs is evidence that

supports a jurisdictional finding. (See e.g., In re Christopher R.

(2014) 225 Cal.App.4th 1210, 1217 (Christopher R.), disapproved

of on another ground in In re N.R., supra, 15 Cal.5th at p. 560,

fn. 18 [mother’s drug use while pregnant “unquestionably”

endangered health and safety of unborn child; mother’s drug use

during pregnancy combined with history of drug use and failure

to treat problem justified dependency jurisdiction]; In re Monique

T. (1992) 2 Cal.App.4th 1372 (Monique T.); In re Stephen W.

(1990) 221 Cal.App.3d 629 (Stephen W.); In re Troy D. (1989) 215

Cal.App.3d 889 (Troy D.).)5

Indeed, some courts, relying on section 355.1,

subdivision (a), have concluded a newborn’s positive toxicology

screen at birth creates a legal presumption that the child is a

5 Troy D. also included a discussion of former Penal Code

section 11166, which the court held would require a hospital

social worker to make a report to a child protective agency if the

worker concluded a newborn’s positive toxicology test results

raised a reasonable suspicion of child abuse. We note that under

current law, Penal Code section 11165.13 provides that for

purposes of mandated child abuse and neglect reporting, “a

positive toxicology screen at the time of the delivery of an infant

is not in and of itself a sufficient basis for reporting child abuse or

neglect.” Instead, a report is to be made “[i]f other factors are

present that indicate risk to a child . . . .” (Pen. Code,

§ 11165.13.)

14

person described by section 300, subdivision (b). (Monique T.,

supra, 2 Cal.App.4th at p. 1378; Stephen W., supra, 221

Cal.App.3d at pp. 638–639; Troy D., supra, 215 Cal.App.3d at

p. 897.) While DCFS has not expressly invoked section 355.1,

subdivision (a) in this case, the petition’s allegation as to C.D.

incorporates portions of the provision’s language: “Where 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

Section 300.” (See In re D.P. (2014) 225 Cal.App.4th 898, 904

[agency provides adequate notice that it will rely on section 355.1

presumption by borrowing its language in the petition].)

We conclude, however, that the evidence was insufficient

for DCFS to rely on the section 355.1, subdivision (a)

presumption in this case. It was undisputed that, despite the

positive toxicology from C.D.’s meconium, C.D. did not suffer any

apparent adverse physical symptoms of prenatal drug exposure.

He did not experience symptoms of drug withdrawal. There was

no evidence that he was premature, underweight, or unhealthy in

any way. Although the evidence indicated mother had taken a

drug that was not prescribed for her, it was also undisputed that

the drugs in her system, and that showed up in C.D.’s meconium,

were prescription drugs, not categorically illegal narcotics. The

lab technician who provided the only “professional” evidence,

indicated the levels of the drugs in C.D.’s meconium were “low”

and consistent with mother’s one-time use of pain medication.

There was no “competent professional evidence” that mother

15

taking prescription pain medicine during pregnancy was

unreasonable, or that C.D.’s birth with those drugs in his

meconium was in fact a detrimental condition.

Moreover, even if the juvenile court did not rely on the

presumption and instead considered the totality of the evidence,

substantial evidence did not support a finding that C.D.’s positive

toxicology screen at birth alone established he had suffered

serious physical harm or illness as a result of mother’s substance

abuse. There was no evidence that the presence of a low level of

an opioid substance consistent with a one-time use of prescription

pain medication by mother constituted serious physical harm or

illness. Aside from the positive toxicology screen, there was no

evidence that C.D. experienced any medical problems or concerns

at birth or after.

On appeal, DCFS attempts to rely on Troy D. and Stephen

W. by asserting that neither case held that evidence of addiction

and withdrawal symptoms is necessary to support a finding of

jurisdiction based on a newborn’s positive toxicology screen.

DCFS thus suggests a positive toxicology screen at birth alone

may be enough to support a jurisdictional finding. Neither case

supports DCFS’s argument.

In both Troy D. and Stephen W., the children were born

testing positive for “dangerous,” illegal drugs. (Stephen W.,

supra, 221 Cal.App.3d at p. 634 [minor positive for opiates and

mother admitted heroin use prior to the birth]; Troy D., supra,

215 Cal.App.3d at p. 895 [minor born positive for amphetamines

and opiates].) In both cases, the record included testimony from

doctors about the effects of prenatal drug use, both in general and

on the children in question. (Stephen W., at pp. 642–643; Troy D.,

at p. 904.) And, in both cases, the children were suffering

16

demonstrable negative physical effects connected to their

mothers’ prenatal drug use. (Stephen W., at p. 642; Troy D., at

p. 904.) Neither court had occasion to decide whether the

section 355.1, subdivision (a) presumption would apply, or

whether there would be substantial evidence to support

jurisdiction, in the absence of competent professional evidence

about the dangerousness of the drugs or the effects of those drugs

on the child, or in the absence of evidence of physical harm.

(People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10 [cases are not

authority for propositions not considered].)

Similarly, in Christopher R., the court indicated the

mother’s use of “cocaine (and, based on the positive toxicology

screen for [the youngest minor] at birth, amphetamine and

methamphetamine) while she was pregnant, unquestionably

endanger[ed] the health and safety of her unborn child.”

(Christopher R., supra, 225 Cal.App.4th at p. 1217.) However,

the mother conceded dependency jurisdiction was proper as to the

child who was born with a positive toxicology screen for cocaine

and “other illicit drugs.” She contested the court’s jurisdictional

findings only as to her older children. (Id. at p. 1215.) The court

therefore did not consider the circumstances under which the

section 355.1, subdivision (a) presumption would apply, or

whether evidence of positive toxicology at birth alone is sufficient

to support a jurisdictional finding.6 Christopher R. does not

assist DCFS’s argument.

6 Although the drug-exposed infant in Christopher R. did not

have withdrawal symptoms or ongoing health problems, the court

noted she was born with low birth weight and respiratory issues

that required her to receive oxygen and be fed intravenously.

17

In contrast, we find J.A., supra, 47 Cal.App.5th 1036

instructive. J.A.’s younger sibling was born with a positive

toxicology screen for marijuana. The mother also tested positive

and admitted she had used medical marijuana throughout her

pregnancy, without informing her doctor. (Id. at p. 1038.) The

infant did not appear to have any developmental concerns. A

nurse explained that delays due to the prenatal marijuana

exposure could become apparent when the child was older. There

was no other evidence of actual or anticipated harm. The

appellate court concluded there was no evidence that the

mother’s substance abuse placed her children at substantial risk

of harm. As a result, the only possible basis for jurisdiction was

the fact that the infant tested positive for marijuana at birth.

DCFS relied on the section 355.1 presumption, as reflected in

cases such as Troy D., to assert that the infant’s positive

toxicology screen alone created a presumption that dependency

jurisdiction was warranted.

The J.A. court concluded the presumption did not apply.

Referring to Troy D., the court reasoned that application of the

presumption “when a child is ‘diagnosed as being born under the

influence of a dangerous drug,’ such as morphine and

methamphetamine, is clear. . . . Being born ‘under the influence

of a dangerous drug’ is obviously a ‘detrimental condition’ within

the meaning of the statutory presumption.” (J.A., supra, 47

Cal.App.5th at p. 1049.) The court further explained that the

She remained in the hospital for 25 days after birth.

(Christopher R., supra, 225 Cal.App.4th at p. 1213.) Thus, it is

not clear that the court was presented with a situation in which

the infant suffered no discernable negative effects from the

mother’s prenatal drug use.

18

circumstances of the children’s births in Monique T. and

Christopher R. clearly reflected detrimental conditions. (Ibid.) In

Monique T., the infant tested positive for cocaine at birth and

suffered severe medical problems. As noted above, the infant in

Christopher R. tested positive at birth for cocaine, amphetamine,

and methamphetamine. (Ibid.)

However, the record before the J.A. court included no

competent professional evidence of an injury or detrimental

condition. The evidence showed only that the child tested

positive for cannabinoids. He did not appear to be

developmentally delayed. The court thus concluded: “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.” (J.A., supra, 47 Cal.App.5th

at p. 1049.)

Likewise, here, the evidence of prenatal exposure to

prescription pain medication alone was insufficient to trigger the

section 355.1 presumption. It further did not, by itself, constitute

substantial evidence that C.D. suffered serious physical harm or

illness as a result of mother’s substance abuse. While it is not

difficult to imagine that the use of prescription opioids during

pregnancy could result in a child being born with injuries or

suffering from a detrimental condition or physical harm,

substantial evidence requires more than speculation or

conjecture. Inferences must rest on evidence. No such evidence

was adduced in this case.

19

III. Substantial Evidence Did Not Support a Finding of a

Substantial Risk the Children Will Suffer Serious

Physical Harm or Illness

Dependency jurisdiction is also appropriate under

section 300, subdivision (b), when there is a substantial risk that

a child will suffer serious physical harm or illness as a result of a

parent’s inability to adequately supervise the child, or the

parent’s inability to provide regular care for the child, because of

the parent’s substance abuse. Indeed, the court need not wait

until a child is injured to assume jurisdiction and take steps to

protect a child. (In re I.J. (2013) 56 Cal.4th 766, 773.)

At the same time, as the California Supreme Court recently

clarified in N.R., even when children are very young, “it is

inappropriate to regard a parent’s . . . excessive use of alcohol or

an addictive drug as always being sufficient, by itself, to show

that the parent . . . is unable to provide regular care for a young

child and that the child is therefore at substantial risk of serious

physical harm.” (N.R., supra, 15 Cal.5th at pp. 558–559.)

Instead, “an inability to provide regular care and a substantial

risk of serious physical harm or illness must be established on

the facts of each case . . . .” (Id. at p. 559.)7

7 The N.R. court rejected the “tender years presumption,”

namely “the position that a ‘finding of substance abuse is prima

facie evidence of the inability of a parent or guardian to provide

regular care resulting in a substantial risk of physical harm’ to a

child of ‘ “tender years.” ’ [Citation.]” (N.R., supra, 15 Cal.5th at

pp. 556–557.) Although minors’ counsel and counsel for DCFS

referred to “tender years” in their arguments to the juvenile court

below, the record does not clearly indicate that the court relied on

the tender years presumption in making its jurisdictional

findings.

20

Here, again assuming the evidence was sufficient to

establish that mother abused prescription drugs, the record still

lacks substantial evidence that mother’s substance abuse

rendered her unable to adequately supervise the children or to

provide regular care for them, and that the inability placed the

children at substantial risk of suffering serious physical harm or

illness.

There was no evidence that mother’s substance use or

abuse endangered the children prior to the instant case.

Although DCFS located a prior referral from April 2021 about the

family, it concerned only potential domestic violence with father.

The referral was closed with the assessment that the risk of

neglect was low. DCFS reported at the time that the family had

no prior DCFS history and mother had “shown resilience and

strength in her parenting.” Mother had a prior arrest from 2015

for corporal injury to a spouse, but no other criminal history.

There was no evidence of abuse or neglect in the household and

mother had “proven her ability to adequately care for [B.D.’s]

needs . . . .”

At the hospital when C.D. was born, the DCFS social

worker noted mother was attentive to C.D. and was caring for

him appropriately. Neither the nurse nor the hospital social

worker expressed any concerns about mother’s ability to care for

C.D. In each documented visit to mother’s home, social workers

found no concerns with the state of the home or mother’s care of

the children. DCFS also did not dispute mother’s testimony that

a social worker had come to her home twice a month while the

case was pending. The dependency investigator was not aware of

any concerns with mother’s actual care of the children. DCFS

interviewed only one family member, the maternal grandmother,

21

who expressed no concerns about mother’s care of the children.

At the jurisdiction hearing, mother testified that B.D. was in

school and was excelling. DCFS did not dispute that testimony.8

Mother testified that both children received regular medical care

and B.D. had regular dental care. DCFS did not dispute that

testimony either.

There was no evidence that mother engaged in drug-related

behavior that might put the children at risk of harm. (See e.g., In

re L.W. (2019) 32 Cal.App.5th 840, 850 [that mother was arrested

twice for driving under the influence was evidence of substance

abuse spilling into areas that would pose substantial risk of

physical harm to 13-year-old].) There was no evidence that

mother was impaired when caring for the children. (In re

Kadence P. (2015) 241 Cal.App.4th 1376, 1380, disapproved of on

another ground in In re N.R., supra, 15 Cal.5th at p. 560, fn. 18

[mother was visibly under the influence of illicit drugs during

visits, refused to drug test or tried to cheat test].) There was no

evidence that mother had a prior child welfare history related to

substance abuse or inadequate care of the children. (Id. at

pp. 1384–1385 [mother’s continuous illicit drug use led to removal

of older children; infant was at substantial risk of harm].) DCFS

offered no evidence about the effects or characteristics of

prescription drug abuse generally. (Stephen W., supra, 221

Cal.App.3d at pp. 642–643 [expert testified that: heroin addicts

nod off and could not attend to a newborn; couples who are

addicts often use at the same time; there is risk of overdose from

8 Presumably the social workers visiting mother’s home

twice a month between June 2022 and January 2023 learned that

B.D. had apparently started preschool. There is no indication

that DCFS attempted to interview anyone from the school.

22

drug being cut with other substances; an unstable lifestyle goes

along with the addiction].) Further, DCFS offered no evidence to

explain mother’s positive July 2022 drug test, such that the court

could have drawn inferences about mother’s ability or inability to

safely care for the children based on the test results alone. While

mother declined DCFS services and drug testing, there was no

evidence that she was otherwise secretive, tried to keep DCFS

from having access to the children, or obstructed DCFS’s

investigation. (E.E., supra, 49 Cal.App.5th at pp. 213–214

[mother was dishonest about drug use during pregnancy, was

evasive, tried to set up a guardianship to keep children from

being detained].)

On appeal, DCFS argues mother has conceded jurisdiction

was proper based on her use of marijuana, since she failed to

mention that allegation in her opening brief. We disagree.

Mother’s opening brief adequately challenged the entirety of the

juvenile court’s jurisdictional findings, and we agree with mother

that there was no evidence that she abused marijuana. The only

reported positive test mother had for marijuana was at an

October 2021 prenatal visit, months before DCFS became

involved with the family. Mother did not test positive for

marijuana at C.D.’s birth or in July 2022. There was no evidence

that mother’s use of marijuana was ongoing, much less that it

rose to the level of substance abuse. There was similarly no

evidence that mother smoked marijuana in the presence of the

children, potentially subjecting them to second-hand marijuana

smoke, as DCFS asserts on appeal.

DCFS’s remaining arguments concern mother’s actual and

presumed use of unprescribed opiates. Yet, as explained above,

substance abuse is not by itself sufficient to show a parent cannot

23

provide regular care for a child and that the child is therefore at

risk of serious physical harm. (N.R., supra, 15 Cal.5th at

pp. 558–559.) DCFS was required to “present evidence of a

specific, nonspeculative and substantial risk . . . of serious

physical harm” to the children. (In re Destiny S. (2012) 210

Cal.App.4th 999, 1003.) It failed to do so.

On the record before us, the jurisdiction findings under

section 300, subdivision (b) must be reversed, and the disposition

and all subsequent orders vacated.9

9 We recognize that over a year has passed since the juvenile

court entered the orders that we now review, and circumstances

may have changed. “Our conclusion that the sustained

allegations of the petition do not support jurisdiction does not

mean [that] DCFS cannot try again. . . . [I]t is entirely possible

valid grounds exist for the state to assume jurisdiction over these

children . . . .” (In re Janet T. (2001) 93 Cal.App.4th 377, 392.)

24

DISPOSITION

The orders of the juvenile court are reversed.

ADAMS, J.

We concur:

LAVIN, Acting P. J.

EGERTON, J.

25

Filed 6/28/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re B.D. et al., Persons Coming

Under the Juvenile Court Law.

LOS ANGELES COUNTY No. B327625

DEPARTMENT OF CHILDREN

AND FAMILY SERVICES, (Los Angeles County

Super. Ct. No. 22LJJP00221A–B)

Plaintiff and Respondent,

v.

ORDER CERTIFYING OPINION

Brittany B., FOR PUBLICATION

Defendant and Appellant.

THE COURT:

The opinion in the above-entitled matter filed on June 6,

2024, was not certified for publication in the Official Reports.

Upon request by appellant and a non-party to this action, and

good cause appearing, it is ordered that the opinion shall be

published in the Official Reports.

Pursuant to California Rules of Court, rule 8.1105(b), this

opinion is certified for publication.

LAVIN, Acting P. J. EGERTON, J.

ADAMS, J.

2