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In Re Destiny S., A Person Coming Under the Juvenile Court v. Rosemarie H

October 31, 2012

IN RE DESTINY S., A PERSON COMING UNDER THE JUVENILE COURT LAW. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
v.
ROSEMARIE H., DEFENDANT AND APPELLANT.



APPEAL from orders of the Superior Court of Los Angeles County. Marilyn Martinez, Juvenile Court Referee. (Los Angeles County Super. Ct. No. CK90236)

The opinion of the court was delivered by: Rothschild, Acting P.J.

CERTIFIED FOR PUBLICATION

Reversed.

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),*fn1 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 back positive.

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 hearings.

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 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.*fn2

DISCUSSION

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 ...


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