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Name: In re S.W. et al.
Case #: F085709
Opinion Date: 10/17/2023
Attorney: Sean Angele Burleigh

Mother appealed from the juvenile court’s order removing her children from her physical custody under Welfare and Institutions Code section 361(c)(1). Although the juvenile court later granted her section 388 petition and returned the children to her physical custody, this did not make the appeal moot. The case remained ongoing and she remained subject to the dispositional orders challenged in the appeal. Even if the issues raised were moot, the Court of Appeal had the inherent discretion to reach them on the merits.

First, Mother’s past use of marijuana edibles to treat morning sickness as directed by her doctor provided no basis for the juvenile court’s finding that she was a substance abuser or that her marijuana use placed the children at substantial risk of serious harm.

Second, the record did not contain clear and convincing evidence that there would be a substantial danger to the children if returned to Mother’s physical custody and no reasonable means by which to protect the children’s physical health without removal. Mother was no longer living at the property found to present a substantial risk of serious physical harm or illness to the children, nor was she living with Father, against whom there was a “failure to protect” finding under section 300(b). The juvenile court’s concern that Mother was being less than forthcoming in her testimony about her connection to the property and was somewhat minimizing her responsibility for the family’s initial living situation was by itself insufficient to remove the children from her physical custody.

Third, the juvenile court erred in ordering drug and alcohol testing, a second mental health assessment, and substance abuse and mental health services. Neither Mother’s past marijuana use nor her testimony provided any evidence that she had substance abuse or mental health issues.

The court reversed the aforementioned findings and orders. The judgment was otherwise affirmed.