Unreported / Non-Citable
Background
The case involved two children, E.A. (born 2011) and Z.M. (born 2016), who lived with their mother G.B. in the maternal grandmother's home, where mother also cared for her terminally ill mother and her adult brother with Down Syndrome. On March 16, 2025, the Los Angeles County Department of Children and Family Services (DCFS) received a report of PCP-dipped cigarettes and other drugs being smoked in the children's presence. After mother tested positive on May 1, 2025 for amphetamines, PCP, and methamphetamine, DCFS filed a non-detained petition under Welfare and Institutions Code section 300, subdivision (b)(1), alleging her substance abuse rendered her incapable of providing regular care.
At a July 17, 2025 hearing, the juvenile court sustained the count against mother, dismissed the count against father R.M., and left the children in the parents' home under DCFS supervision, with a case plan requiring a drug and alcohol program, weekly random and on-demand testing, family preservation services, and individual counseling. Over the following months mother repeatedly tested positive at high levels for methamphetamine, amphetamine, and PCP, missed numerous tests, delayed entering treatment, and was terminated from family preservation services on September 30. DCFS obtained a removal order on October 3, detained the children that evening, and filed a section 387 supplemental petition alleging the previous disposition had not been effective in protecting the children.
At the October 8, 2025 detention hearing, the court detained both children from mother and Z.M. from R.M., releasing E.A. to his father C.A.; on October 17, 2025, the court ordered Z.M. released to a maternal cousin. After a December 5, 2025 hearing on the amended section 387 petition, the juvenile court sustained both counts, found by clear and convincing evidence that the children faced substantial danger in mother's care and that no reasonable means existed to protect them without removal, and mother appealed those findings and orders.
The Court’s Holding
The Court of Appeal first rejected DCFS's argument that mother had waived her challenge by agreeing at the July disposition that counsel could seek further orders if she continued testing positive. Counsel never expressly agreed to a change of placement to a more restrictive level of care—the purpose of a section 387 petition—so the court found no waiver, forfeiture, or invited error.
On the merits, the court held substantial evidence supported the finding that the prior disposition had been ineffective. The July placement with mother was premised on her participation in treatment, testing, family preservation, and counseling; mother did not enroll in an outpatient program until late September, made no progress, missed numerous drug tests, and continued testing positive at consistently high levels for methamphetamine and PCP. Missed tests could properly be treated as the equivalent of positive results, and mother's repeated denials showed a lack of insight into how her substance abuse could impair her judgment.
The court further held the record supported the removal finding under section 361, subdivision (c)(1), by clear and convincing evidence: removal does not require that a child already have been harmed, mother admitted near-daily methamphetamine use, and the bedridden maternal grandmother could not ensure the children would be supervised while mother was under the influence. Finally, the court held mother lacked standing to challenge the sustained count against father R.M., because that count was based on his conduct alone and striking it would not affect the orders concerning mother's custody.
Key Takeaways
- A section 387 petition does not require new jurisdictional facts; the only fact necessary to modify a prior placement is that the previous disposition has not been effective in protecting the child.
- A parent's agreement to seek further orders if she continued testing positive did not waive appellate review of a later order changing the children's placement to a more restrictive level of care.
- A missed drug test without adequate justification is properly considered the equivalent of a positive test result.
- Removal under section 361 does not require proof that the child has already been harmed; the focus is on averting harm to the child.
- A parent lacks standing to challenge sustained allegations against the other parent where those allegations do not affect her own custodial interests.
Why It Matters
The decision illustrates how California appellate courts apply the bifurcated section 387 framework and the section 361 removal standard when a parent's substance abuse persists despite court-ordered family maintenance services. An in-home placement conditioned on a parent's participation in services can be found ineffective when the parent fails to engage in those services and continues using dangerous drugs at high levels, even if the children have not yet suffered actual harm.
The opinion also reinforces that counsel's statements about seeking further orders do not necessarily waive a later challenge to a placement change, and that a parent cannot attack allegations directed solely at the other parent when those allegations do not affect her own custodial interests.