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Name: In re J.M.
Case #: B293382
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 10/03/2019

Reversal was required where juvenile court declined to take jurisdiction over minors after mother absconded with them for nine months following a removal order. Following reports of domestic violence and drug use in the home, the Department filed Welfare and Institutions Code section 300(a) and (b) petitions. The petitions alleged that mother and father had a history of engaging in violent altercations in the minors’ presence as well as a violation of a criminal restraining order. The petition also alleged that parents’ marijuana usage rendered them incapable of caring for the minors. The minors were released to mother’s care. About two weeks later, mother tested positive for amphetamine, methamphetamine, cocaine, and cannabis. Mother admitted only the marijuana use, but said it was occasional and not in the minors’ presence. When the Department obtained a removal order and attempted to detain the minors, mother left with the minors. The Department was unable to determine where the mother and minors were for the next nine months. When the Department obtained custody of the minors, they were placed with a relative. Neither parent cooperated with the Department, so the Department had been unable to ascertain whether there was ongoing domestic violence or drug use. The court dismissed the petition, stating that there was insufficient evidence of current risk. The Department filed a petition for supersedeas and an immediate stay of the dismissal order. The appellate court granted the petition and the stay, and then reversed the juvenile court’s dismissal order. The court erred when it dismissed a petition for lack of sufficient evidence of current risk when the reason why such evidence is lacking is because a parent absconded with her children and prevented the Department from monitoring their welfare. The juvenile court here issued a removal order based on probable cause to believe that the minors were at risk in mother’s home. Mother absconded with the minors after the removal warrants issued. Upon her return she missed additional drug tests. This was an unrebutted basis to infer mother’s drug use was continuing. Under the circumstances, no substantial evidence supported the court’s decision to decline to assume jurisdiction over the minors, returning them to parents who were not present for the jurisdiction hearing and had unaddressed drug use problems.