Opinion
B299834
07-07-2020
In re Emily S. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DESIREE T., Defendant and Appellant.
Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephanie Jo Reagan, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. 19LJJP00349 APPEAL from orders of the Superior Court of Los Angeles County, Stephanie M. Davis, Juvenile Court Referee. Affirmed. Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephanie Jo Reagan, for Plaintiff and Respondent.
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INTRODUCTION
Desiree T. (mother) appeals from the juvenile court's disposition orders declaring her five minor children dependents of the court, removing them from her custody, and placing them with their father. On appeal, mother argues insufficient evidence supports the court's jurisdiction finding that her use of marijuana, methamphetamine, and amphetamine places the children at risk of serious physical harm. Mother also argues that because substantial evidence does not support the jurisdiction finding, the disposition orders removing the children from her custody must be reversed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Family's Background and Prior Child Welfare History
Mother and Jimmy S. (father) have five minor children: Emily (born in October 2004), Nathan (born in January 2006), Priscilla (born in October 2007), Francisco (born in October 2008), and Erycka (born in January 2012). When this case began, Nathan, Erycka, and Francisco lived with mother, while Emily and Priscilla lived with father.
Father is not a party to this appeal.
In January 2012, mother tested positive for marijuana shortly after Erycka was born. Mother admitted she had used marijuana about three weeks before the child was born because of "issues" with father. Mother participated in family maintenance services from April 2012 through April 2013.
In October 2013, the juvenile court sustained a dependency petition alleging that father physically abused Nathan, Emily, Priscilla, and Francisco; that mother and father engaged in domestic violence in front of the children; and that mother was a current abuser of marijuana and methamphetamine. Mother "fully complied" with her court-ordered case plan, including regularly testing negative for illicit substances, completing "programs," and enrolling the children in therapy. In October 2014, the court terminated jurisdiction and returned the children to their parents' custody.
In November 2017, a caller reported that Erycka had told her friends that mother was "always doing drugs." The caller also reported seeing people "abusing" drugs in mother's garage. In early August 2018, father reported that mother's adult daughter, Samantha, had called him complaining that mother had left the children alone with her for a week without making a plan for the children's care. The Department of Children and Family Services (Department) investigated both reports and determined they were inconclusive.
In late August 2018, mother was arrested for being under the influence of a controlled substance. Mother was riding in the front passenger seat of a car that was stopped by the police because the driver was speeding. The police found drug paraphernalia inside the car. After mother performed a field sobriety test, the police concluded she was under the influence of a "central nervous system" stimulant. Although mother submitted a drug test sample, the results of the test are not in the appellate record.
2. Initiation of the Current Dependency Proceedings
The children most recently came to the Department's attention in March 2019 when someone called to report that mother was using methamphetamine "in the home in the presence of the children." The caller also reported that mother leaves "meth and paraphernalia" within reaching distance of the children and allows "drug dealers" into the home while the children are there.
After receiving the referral, the Department interviewed the family. Mother told the Department that she had used methamphetamine when she was young, but she denied currently using the drug. Mother participated in a substance abuse program for marijuana use in 2012, which she did not complete. She later finished a substance abuse program while living in a shelter. Mother still smokes marijuana, but only out of the children's presence—usually outside the home or inside her car when the children are asleep. Mother denied leaving marijuana or any other drugs anywhere in the home where the children could reach them. Mother claimed she never leaves the children unsupervised at home, and Samantha and mother's friend, Patty, often help with childcare.
Mother agreed to drug test. She had two unexcused missed tests, one on March 21 and another on March 22, 2019. On March 27, 2019, mother tested positive for marijuana metabolites.
Samantha lived with mother, Nathan, Francisco, and Erycka. Samantha reported that things were "going well" with mother. Mother was working at a dental office. According to Samantha, mother uses marijuana occasionally. Samantha did not believe mother was using any illicit drugs. Samantha denied seeing any drug users come to the home.
Emily, Nathan, Priscilla, and Francisco reported that they had never seen mother use drugs, and they denied that mother left drugs in the home. The children also had never seen "drug dealers" or "weird" people come to mother's home. Some of the children had seen mother consume alcohol but only socially and never in excess. Erycka, who was seven years old at the time, didn't know what drugs or alcohol were.
All the children felt safe around mother, and Nathan, Francisco, and Erycka wanted to continue living with her. Emily and Priscilla told the Department that they were living with father because mother had left them overnight with Samantha, but both children wanted to move back into mother's home. Nathan, Francisco, and Erycka were all attending school and receiving good grades while living with mother. Francisco had "a few tardy/absences" and two behavioral incidents involving "foul language," and Erycka had "few absences and many tard[ies]," with only one behavioral incident. Francisco had been expelled from two schools while living with father before he moved back into mother's home.
Father reported that mother has a history of drug use, and he claimed the children told him stories "of different people going in and out of the home." Father sought custody of the children in 2018 because mother would leave the children alone with Samantha, sometimes for six or seven days. Father believed mother's absences were related to her drug use. Father didn't know, however, whether mother currently was using illicit drugs because he didn't live near her. According to father, the children were trying to protect mother by denying that she currently uses drugs or brings other drug users to her home.
In mid-April 2019, one of the Department's social workers asked mother if she would be willing to submit to an on-demand drug test. According to the social worker, mother's voice became "nervous/jittery," and mother claimed some family members had recently passed away. Mother said she would call the social worker back immediately to let the social worker know if she could drug test. Mother never called the social work back, and she never responded to the social worker's text messages asking her when she would be available to test.
The Department made unannounced visits to mother's home in late-April and mid-May 2019. Mother was at work during both visits. The home was safe, clean, and well-stocked with food, and the Department didn't report any evidence of drug use.
As of late May 2019, the Department reported that mother was doing "an adequate job in caring and providing for her children, as the children have been observed to have clean hygiene, the children denied all forms of abuse, and the children appear to be thriving academically." Nevertheless, the Department recommended the family be subject to court supervision to "address the famil[y's] underl[ying] needs and the mother['s] unresolved substance abuse issues."
On May 22, 2019, the Department filed a dependency petition on the children's behalf, alleging mother has a history of illicit drug abuse, including methamphetamine, and that she currently abuses "marijuana and illicit drugs," which places the children at risk of serious physical harm. The petition alleged that, in August 2018, mother was arrested after she was under the influence of a controlled substance while around the children and that, in March 2019, she tested positive for marijuana. The petition also alleged that father failed to protect the children from mother's substance abuse. The Department did not detain the children before it filed the dependency petition.
At the initial hearing, the court found the Department alleged a prima facie case under Welfare and Institutions Code section 300. The court ordered the children to remain released to their parents' custody under the Department's supervision.
All undesignated statutory references are to the Welfare and Institutions Code.
The Department interviewed the family again in June 2019. Emily, Nathan, Priscilla, and Francisco all denied seeing mother or anyone else use drugs in the home. Some of the children saw mother smoke cigarettes but only outside the home. The children always had enough food to eat, and when mother wasn't home, Samantha or the children's aunt would take care of them. When asked about mother's reported absences in August 2018, Priscilla told the Department that she wanted to live with father at the time because mother "was never home ... [and] Sam took care of [the children.]"
Mother told the Department that her "relaxation" is marijuana, which she only uses when the children are at school or asleep, and she never stores it in the home. Mother also sometimes drinks alcohol at family parties, but she always makes arrangements for Samantha or the maternal aunt to take care of the children. Mother denied currently using methamphetamine or any other illicit drug, and she blamed father for fabricating the allegations that she was still using illicit drugs. Although mother told the Department that she first tried methamphetamine with father when she was young, she later denied ever using the drug.
When asked about her arrest in August 2018, mother denied that she was under the influence of a controlled substance. Mother claimed the passenger she was riding with had the "meth" pipe and that the police only arrested mother because she "talked too much."
Samantha denied that mother uses any drugs. Mother occasionally drinks alcohol, and she only does so when Samantha or another adult is around to help care for the children. Samantha and her boyfriend use marijuana before bed several times a week, but they store the drug in her car or in a locked cabinet the children can't access.
When asked about the period in August 2018 when mother left the children alone, Samantha stated that mother was at school and with her friends most of the time, but mother still came home. Samantha also was working at the time and occasionally wouldn't see mother for a day or two. Samantha was "stressed out" having to care for the children when mother wasn't home, so she called father to ask him to help care for them.
Samantha's boyfriend, who had been living with Samantha, mother, and the children since January 2019, had never seen mother use drugs or drink alcohol. The boyfriend sometimes helped care for the children when mother was at work or out running errands.
The children's maternal aunt reported that she had no concerns about the children's safety with mother. The aunt saw the children about every other week. The aunt never saw any evidence of drugs in the home, and she believed mother was taking proper care of the children, walking them to school and using non-violent means of discipline.
Father reported that mother has been using "meth and marijuana" since he met her in 2003. Father didn't know how frequently mother used drugs, but he believed it was "about once or twice a week." According to father, mother wouldn't come home when she used methamphetamine, leaving him with the children. At one point, father filed a "missing person" report for mother.
Mother continued to drug test. She missed a test on June 21, 2019, which was excused, and she tested positive for marijuana on June 26 and July 3, 2019. She had an unexcused missed test on July 8, 2019, and she tested positive for methamphetamine, amphetamine, and marijuana on July 18, 2019.
On July 31, 2019, the court conducted a combined jurisdiction and disposition hearing. Mother requested a continuance to address the Department's last minute information report detailing her drug test results from June and July 2019, which the court denied. No witnesses testified at the hearing.
The court sustained the petition, which was amended to allege mother has a history of illicit drug abuse and is a current user of marijuana, methamphetamine, and amphetamine. The court explained why it sustained the petition: "I will indicate the evidence presented before today, before the last [minute] information, is overwhelming in its completeness in that it shows a history of illicit drug use and, most importantly and what the court has witnessed today in court, is a continual denial by the mother of any drug use—any illicit drug use whatsoever. [¶] As counsel was arguing, the court was watching the mother's body language and behavior, and I will note she—the appearance to the court that she is in absolute, complete, total denial of any wrongdoing on her part. [¶] That, with the evidence presented to the court, that presents a substantial risk of detriment. That alone would, but the other information provided, including the evidence that [the Department's counsel] pointed out with respect to the adult daughter having to care for all the children and the information provided and stated, enumerated by [children's counsel] clearly demonstrates that the Department has met its burden."
The amended petition did not name father as an offending parent.
The court declared Emily, Nathan, Priscilla, Francisco, and Erycka dependents of the court. The court found there would be substantial danger to the children's physical health and safety if they remained in mother's custody. The court removed the children from mother's physical custody and placed them with father. The court ordered mother to participate in family enhancement services, including drug testing and treatment and individual counseling to address the effects of substance abuse. The court awarded mother monitored visits with the children.
Mother appealed the court's disposition orders.
In late January 2020, the court terminated dependency jurisdiction and issued family law exit orders. The court awarded mother and father joint legal custody, and father sole physical custody, of the children. The court granted mother a four-hour monitored visit with the children one day a week.
DISCUSSION
1. Substantial evidence supports the court's jurisdiction finding.
We review a juvenile court's jurisdiction finding for substantial evidence. (In re R.V. (2012) 208 Cal.App.4th 837, 843.) We will affirm the finding if it is supported by evidence that is reasonable, credible, and of solid value. (Ibid.) "We do not evaluate the credibility of witnesses, attempt to resolve conflicts in the evidence or determine the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding. [Citations.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order. [Citation.]" (Ibid.)
To establish jurisdiction under section 300, subdivision (b), on substance abuse grounds, the Department must prove: (1) "substance abuse by a parent ... , (2) causation, and (3) serious physical harm to the child, or a substantial risk of such harm." (In re Rebecca C. (2014) 228 Cal.App.4th 720, 724-725.) Risk to a child from substance abuse can be established in two ways: (1) through proof of " 'an identified, specific hazard in the child's environment,' " or (2) through proof that the child is of " 'tender years' "—i.e., six years old or younger—in which case a "finding of substance abuse is prima facie evidence of the inability of a parent or guardian to provide regular care resulting in a substantial risk of physical harm." (In re Drake M. (2012) 211 Cal.App.4th 754, 766-767, italics removed; In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219 [defining "tender years" as six years old or younger].)
The statute provides in relevant part: "A child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: ... [¶] The 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 ... to adequately supervise or protect the child ... or by the inability of the parent ... to provide regular care for the child due to the parent's ... substance abuse." (§ 300, subd. (b)(1).)
To show the child faces a risk of harm at the time of the jurisdiction hearing, there " 'must be some reason beyond mere speculation to believe the alleged conduct will recur. [Citation.]' [Citation.]" (In re D.L. (2018) 22 Cal.App.4th 1142, 1146.) In determining whether conduct is likely to recur, courts may consider evidence of the parent's behavior in the past. (In re N.M. (2011) 197 Cal.App.4th 159, 165.) A parent's denial of wrongdoing or failure to recognize the negative impact of her conduct is also relevant to determining risk under section 300. (See In re Tania S. (1992) 5 Cal.App.4th 728, 735, fn. 4; see also In re A.F. (2016) 3 Cal.App.5th 283, 293 (A.F.) [" '[D]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision.' "].)
It is undisputed that none of mother's children are of "tender years," although Erycka was only seven years old at the time of the jurisdiction hearing, and that none of the children have suffered any physical harm as a result of mother's substance abuse issues. Accordingly, the Department was required to prove mother's drug use posed "a specific, nonspeculative and substantial risk ... of serious physical harm" to the children. (In re Destiny S. (2012) 210 Cal.App.4th 999, 1003 (Destiny S.).) The Department met that burden here.
To be sure, there was evidence that the children were happy, healthy, and doing well academically in mother's home. All the children denied ever seeing mother use drugs, and they all wanted to live with her. The home was always clean and well-stocked, and the Department never found evidence of drug use or paraphernalia inside the home. In addition, Nathan, Erycka, and Francisco had good grades and few behavioral issues at school while living with mother.
Nevertheless, the court reasonably found mother's drug use placed the children at risk of serious physical harm. Specifically, there was evidence that mother would leave the children for several days when she used methamphetamine. Emily and Priscilla reported that they had to move to father's home in August 2018 because mother would often leave them overnight with Samantha. According to father, mother's disappearances often coincided with her use of methamphetamine. Indeed, around the time mother reportedly left the children in August 2018, she was arrested for suspicion of being under the influence of a "central nervous system" stimulant. (See Health & Saf. Code, § 11055, subd. (d)(2) [defining methamphetamine as a substance "having a stimulant effect on the central nervous system"]; People v. Becker (2010) 183 Cal.App.4th 1151, 1155 [same].)
That mother would leave the children with Samantha when mother used methamphetamine does not negate the risk of harm caused by her drug use. Samantha admitted to the Department that she (Samantha) and her boyfriend smoke marijuana several nights a week, and Samantha reported that she became overwhelmed, or "stressed out," caring for the children when mother left for several days in August 2018. Accordingly, mother's conduct creates the risk that a capable adult may not be present to respond to any illness, accident, or other emergency involving the children if they are left alone overnight or for several days in Samantha's care.
Although mother apparently hadn't left the children overnight during the months leading up to the jurisdiction and disposition hearing, the court reasonably could have found mother's conduct was likely to recur. Mother tested positive for methamphetamine shortly before the hearing. Mother's positive test came after she repeatedly told the Department she no longer used methamphetamine. As the court observed, mother has shown an "absolute, complete, [and] total denial of any wrongdoing on her part" throughout the Department's investigation of this case. (See A.F., supra, 3 Cal.App.5th at p. 293 [a parent's denial of responsibility is relevant in determining whether the parent's conduct is likely to recur in the future].)
Mother's reliance on Destiny S. is misplaced. In Destiny S., the Department filed a dependency petition under section 300, subdivision (b), on behalf of an 11-year-old child because the mother had a history of abusing marijuana and methamphetamine. (Destiny S., supra, 210 Cal.App.4th at p. 1001.) After the detention hearing, the mother tested positive for methamphetamine once, but she consistently tested negative for any substances in the three months leading up to the jurisdiction hearing. (Id. at p. 1004.) The juvenile court declared the child a dependent of the court. (Id. at p. 1002.)
The Court of Appeal reversed because there was no evidence that the mother's drug use harmed her daughter or placed the child at risk of physical harm. (Destiny S., supra, 210 Cal.App.4th at pp. 1002-1005.) The child "was a healthy, happy preteen" who was " 'old enough to avoid the kinds of physical dangers which make infancy an inherently hazardous period of life.' [Citation.]" (Id. at pp. 1001-1002, 1004.) The child was well-cared for, and the home was clean and safe, with no evidence of drug use or paraphernalia, and there was no evidence that the mother left the child overnight when she used drugs. (Id. at pp. 1002-1004.) The only evidence of "risk" was the child's frequent tardiness to school the previous year, which the court concluded did not present any risk of physical harm to the child. (Id. at p. 1003.) In this case, on the other hand, mother's pattern of leaving the children for several days at a time when she uses methamphetamine places the children at risk of physical harm.
2. Substantial evidence supports the court's removal order.
After finding a child falls within section 300, the court must determine at the disposition hearing whether the child should continue to reside with their parent or be placed somewhere out of their parent's custody. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) To support a removal order, the Department must prove by clear and convincing evidence that there is: (1) a substantial risk of harm to the child's physical health or emotional well-being if returned home; and (2) a lack of reasonable means short of removal to protect the child's safety. (§ 361, subd. (c)(1); see also Yolanda L., at p. 992.)
"In making its disposition orders the court has broad discretion to resolve issues regarding the custody and control of the child, including deciding where the child will live while under the court's supervision." (In re Anthony Q. (2016) 5 Cal.App.5th 336, 346.) "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (In re T.V. (2013) 217 Cal.App.4th 126, 135-136.) When determining whether removal is appropriate, the court may consider the parent's past conduct and the present circumstances. (In re Cole C. (2009) 174 Cal.App.4th 900, 917 (Cole C.).) We review disposition orders removing a child from his or her parent's custody for substantial evidence. (In re D.C. (2015) 243 Cal.App.4th 41, 55.)
Here, the same evidence that supports the jurisdiction finding also supports the removal orders. Specifically, mother's continued use of methamphetamine, in conjunction with her denial of using the drug, create a risk of substantial physical harm should the children remain in her custody. (See Cole C., supra, 174 Cal.App.4th at p. 918 [father's refusal to accept responsibility for his conduct leading to the child being declared a dependent of the court supported a finding that there were no reasonable means to protect the child absent removal from father's custody].) As we addressed above, mother has a history of leaving the children overnight, sometimes for days at a time, when she uses methamphetamine. Although mother often left the children with Samantha, the court reasonably could have found that such a plan would not eliminate the risk of physical harm to the children caused by mother's absence. Samantha and her boyfriend use marijuana at night several times a week. Further, when mother last disappeared for several days in August 2018, Samantha became overwhelmed by the responsibility of having to care for the children on her own. Consequently, there is no guarantee that a sober adult, or one willing to supervise the children, would be present if mother left them overnight.
DISPOSITION
The juvenile court's disposition orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
DHANIDINA, J.