In re D.S. CA2/2

Filed 6/25/15 In re D.S. CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO In re D.S. et al., Persons Coming Under the B258954 Juvenile Court Law. (Los Angeles County Super. Ct. No. DK06485)

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.L., Defendant and Appellant; D.S. et al., Appellants. APPEAL from orders of the Superior Court of Los Angeles County. Philip L. Soto, Judge. Reversed. Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel, and Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent. Donna Balderson Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant K.L. Suzanne Davidson, under appointment by the Court of Appeal, for Appellants D.S. and B.S.

****** The juvenile court asserted dependency jurisdiction over infant twins who were healthy and well cared for because their mother and father were using marijuana under a prescription and had been diagnosed with mental illness. K.L. (mother) and the twins argue that there was insufficient evidence that the parents’ marijuana use or mental illness placed the twins at substantial risk of serious physical harm. We agree, and reverse the juvenile court’s jurisdictional and dispositional orders.

FACTUAL AND PROCEDURAL BACKGROUND

Mother has been diagnosed with manic depressive disorder and as bipolar with split personality, and has anxiety attacks and seizures. Y.S. (father) was diagnosed as a child with bipolar disorder, schizophrenia, depression and attention deficit hyperactivity disorder, and diagnosed as an adult with post-traumatic stress disorder; he also suffers from ankle arthritis. Unhappy with the side effects of the medications prescribed for them in the past, mother and father obtained recommendations from a medical marijuana clinic to address their physical ailments (that is, mother’s seizures and father’s arthritis). Mother has no prior criminal convictions, and father has a 2001 conviction for possessing a controlled substance. 1 In November 2013, mother gave birth to twin boys, D.S. and B.S. In July 2014, someone reported to the Los Angeles County Department of Children and Family Services (Department) that mother and father’s apartment smelled heavily of marijuana. The Department visited the apartment. The Department confirmed that the apartment smelled of marijuana, most strongly in the bathroom. Mother and father had covered the apartment’s smoke detector with a shower cap, presumably to keep it from going off. Mother and father openly admitted that they were using marijuana medically; positive