Opinion
B299911
05-21-2020
In re R.D. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.S. et al., Defendants and Respondents. R.D. et al., Appellants.
Patricia G. Bell, under appointment by the Court of Appeal, for Appellants. Emily Uhre, under appointment by the Court of Appeal, for Defendant and Respondent C.S. Jill Smith, under appointment by the Court of Appeal, for Defendant and Respondent Mi.P. No appearance by 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP04023) APPEAL from an order of the Superior Court of Los Angeles County, Pete R. Navarro, Juvenile Court Referee. Affirmed. Patricia G. Bell, under appointment by the Court of Appeal, for Appellants. Emily Uhre, under appointment by the Court of Appeal, for Defendant and Respondent C.S. Jill Smith, under appointment by the Court of Appeal, for Defendant and Respondent Mi.P. No appearance by Plaintiff and Respondent.
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This dependency case involves R.D., the two-year-old son of C.S. (mother), and M.P., the infant daughter of mother and Mi.P. (father). (We refer to R.D. and M.P. collectively as the children.) The Los Angeles County Department of Children and Family Services' (DCFS) involvement started when mother and M.P. tested positive for methamphetamine at M.P.'s birth. It is undisputed that the test results were erroneous. A subsequent test confirmed the false positive tests for methamphetamine.
In investigating the case, social workers learned that father used methamphetamine. Father admitted to his methamphetamine use, and mother acknowledged that she was aware of father's use. Pursuant to Welfare and Institutions Code section 300, subdivision (b)(1), DCFS alleged that father's methamphetamine use endangered the children. DCFS also alleged that mother endangered the children by allowing father, a methamphetamine user, into her home. The juvenile court ultimately dismissed the petition, finding no substantial evidence supported any of DCFS's allegations. The children request this court reverse the order dismissing the petition.
Undesignated statutory citations are to the Welfare and Institutions Code.
On appeal, the standard of review is dispositive. The children carry the burden to show that the juvenile court was required to enter an order sustaining the petition. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) "[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) " 'uncontradicted and unimpeached' " and (2) " 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' " (Ibid.)
The children fail to meet that high burden. First, they conflate substance use and substance abuse. They identify no evidence in the record showing that father abused methamphetamine. Further, they offer no evidence that father's abuse of methamphetamine (assuming it existed) endangered the children. The children were not in father's custody, and father did not live with the children. Although there was conflicting evidence whether mother and father intended to continue their relationship, there was no evidence that father was ever alone with the children.
The children offer no legal authority to support their contention that the fact that mother permitted father in her home endangered the children. In addition to citing no legal authority, the children cite no evidence to support that contention. Interpreting the evidence in the light most favorable to the juvenile court's order, the evidence showed that mother "stated she has ended things with [father]" and that maternal grandmother (MGM) would not allow father in the home, where she resided with mother. The children therefore fail to demonstrate any error in the juvenile court's order dismissing that allegation.
We affirm the juvenile court's order dismissing the petition.
BACKGROUND
In June 2019, when DCFS filed a dependency petition, mother had a two-year-old son, R.D. Mother and father had a five-day old infant, M.P. Mother and father were not married. Mother had three other children with different fathers, ages 6, 8, and 15 who were not named in the petition because they had not been living with mother at the time dependency proceedings commenced. DCFS substantiated a 2008 prior allegation of general neglect and a 2012 prior allegation of emotional abuse against mother.
The current petition followed an anonymous referral. The referring party indicated that mother and M.P. tested positive for methamphetamine at M.P.'s birth. The anonymous referring party reported that father admitted to regular methamphetamine use and stated that he had recently been released from prison. The anonymous party reported that father was a gang member and was on parole.
1. Petition
We summarize the pertinent allegations in the petition DCFS filed in June 2019. M.P. was born with a positive toxicology for methamphetamine. This positive toxicology screen showed that mother placed M.P. at risk of serious physical harm. Mother, moreover, has a history of substance abuse and currently abused methamphetamine and marijuana. Mother also had a positive toxicology screen for marijuana in December 2018. Mother had a prior conviction for possession of a controlled substance for sale. Father abused methamphetamine and had criminal convictions for possession of a controlled substance. Mother allowed father to be present in M.P.'s home, jeopardizing M.P.'s safety.
All allegations were pursuant to section 300, subdivision (b)(1) which provides in pertinent part: "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 or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse. . . . The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness."
2. DCFS's Reports
In June 2019, DCFS interviewed mother and father. Mother admitted that she once consumed marijuana while she was pregnant but denied methamphetamine use. Mother provided her prenatal care history, which showed one positive test for marijuana in December 2018. Mother knew father used methamphetamine and admitted that she allowed father to be around her son when father was under the influence of a controlled substance. Mother stated that father's methamphetamine use concerned her, but "sometimes I would forget that he uses."
DCFS later interviewed mother, and mother stated that she ate cookies with marijuana to help her sleep, but she never ate them in front of R.D. Mother represented that she stopped using marijuana when she learned she was pregnant. Mother said that she had not smoked marijuana for at least four years and never used methamphetamine. Mother said that two weeks before M.P. was born, father was acting "strange" and mother told him she did not want him in her house. After M.P.'s birth, father promised to change his behavior. Mother represented that father once was a gang member, but no longer participated in a gang. Mother also stated although she and father did not live together, they regularly spent time together. Mother stated that she did not want father around her children if father was using drugs. Later, mother indicated she had ended her relationship with father. Mother "explained, '[H]e doesn't really talk to me, I don't know if he is still using.' "
Father admitted that he used methamphetamine, but denied the allegation that mother used methamphetamine. Father tested only once for methamphetamine, and his test was diluted. Father also admitted that he was on probation (not parole as the anonymous caller had reported). The social worker did not ask father if he was a member of a gang. The social worker scheduled a follow-up interview, but father did not attend it. Father's step grandmother stated that father "is a substance user and in and out of prison." MGM reported that once father showed up "high" at her house, where mother lived. Father came early in the morning because "[h]e knew he couldn't sleep over at my [MGM's] house." MGM knew father was "high" because "[h]is eyes were popping out." MGM told father "it's my house and he couldn't come in." MGM told father "once the baby is born he isn't allowed here; it's my house."
Although a screening test indicated that mother and M.P. tested positive for methamphetamine, the confirmatory test showed that both tested negative for methamphetamine. The lab manager at the hospital where M.P. was born confirmed that the second test was more reliable.
In July 2019, DCFS reported mother had been convicted of vandalism (in 2007) and of possession of cocaine base for sale (in 2009). MGM indicated that mother never used drugs but had been convicted of selling drugs. MGM stated that mother lived with her, and that father was not welcome in the house. MGM told father, "I don't want him there, not at my house at all."
DCFS reported that father has an extensive criminal history including convictions for possession of a controlled substance, carrying a concealed dirk or dagger, carrying a firearm, vandalism, and injury to a spouse or cohabitant.
3. Jurisdictional Hearing
At the jurisdictional hearing, DCFS moved to strike the allegations that mother and M.P. tested positive for methamphetamine. DCFS continued to argue that the juvenile court should assume jurisdiction based on the following allegations: (1) mother's history of substance abuse; (2) father's history and current use of methamphetamine; and (3) mother's endangering the children by allowing father in her home. DCFS's counsel emphasized evidence father used methamphetamine and mother knew of father's use.
Children's counsel requested the juvenile court to sustain the allegations that father's current use of methamphetamine endangers the children and that mother endangered the children by allowing father in the home. Children's counsel conceded that father was not the custodial parent. Mother's counsel argued that the children were safe with mother and that father was not living with mother. Father's counsel contended that the children should stay with mother and that there was no current evidence father used methamphetamine.
The juvenile court dismissed the petition over the objection of the children's counsel and DCFS. It explained: "The court has read and considered the evidence in this case. But for the false positive, this case would have never been filed. There's insufficient surrounding facts in this family's case to support the filing and sustaining of the petition. [¶] I suppose if we dig deep enough in every family, we could find some reason to find—make an allegation that the case should be in the dependency system, but the court finds insufficient evidence to support the sustaining of any counts in this petition." The children timely appealed.
DISCUSSION
Because the party with the burden of proof failed to carry it burden at trial, we review the record to determine "whether the evidence compels a finding in favor of the appellant[s] as a matter of law." (In re I.W., supra, 180 Cal.App.4th at p. 1528.) The children argue that "[f]ather is an active abuser of methamphetamine, and without a sustained petition it is impossible to adequately protect both minors from the risk posed by father's drug abuse."
A. The Children Fail to Demonstrate Error In Dismissing the Count that Father Posed a Risk to the Children Based on His Methamphetamine Use
DCFS alleged that father "has a history of illicit drug use and is a current user of methamphetamine" and that father's "illicit drug use endangers the child's physical health and safety and places the child at risk of serious physical harm and damage." On appeal, the children argue that the juvenile court was required to sustain the foregoing allegations. The children emphasize their young age and argue that "there is a prima facie case that father, as a substance abuser, would be unable to properly care for his child." The children's arguments are not persuasive because there was no evidence that father abused methamphetamine, and even assuming father abused methamphetamine, there was no evidence his methamphetamine abuse placed either M.P. or R.D. at risk of physical harm.
This court recently explained: "Section 300, subdivision (b)(1) permits a juvenile court to assume dependency jurisdiction when '[t]he 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 or guardian to adequately supervise or protect the child, . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse.' " (In re L.C. (2019) 38 Cal.App.5th 646, 651-652.)
" 'Substance abuse for purposes of section 300, subdivision (b), is shown by a diagnosis from a medical professional or by evidence of criteria recognized by the medical profession as indicative of a substance abuse disorder.' [Citation.] 'A true finding under this subdivision requires evidence of " ' " ' "serious physical harm or illness" ' " ' " to the child, or " ' " 'a "substantial risk" of such harm or illness.' " [Citations.]' " ' [Citation.] " 'Proof of this element " ' "effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future . . . . " ' " ' " (In re L.C., supra, 38 Cal.App.5th at p. 652.) "The[ ] criteria [of substance abuse] include cravings and urges to use the substance; spending a lot of time getting, using, or recovering from use of the substance; giving up important social, occupational or recreational activities because of substance use; and not managing to do what one should at work, home or school because of substance use." (In re Alexzander C. (2017) 18 Cal.App.5th 438, 447.)
The children incorrectly assume that substance use is the equivalent of substance abuse. Here, the evidence that father used methamphetamine was uncontroverted. Father admitted to using. His single test for a controlled substance was diluted. Mother acknowledged that father used methamphetamine. MGM observed father under the influence and father's relatives confirmed father's use.
Without citation to the record or support from the record, the children state that "[t]here is no dispute that father is a substance abuser." The children point to no evidence that father was diagnosed with a substance abuse disorder or exhibited symptoms case law has required for showing a substance abuse disorder. (In re Alexzander C., supra, 18 Cal.App.5th at p. 447.)
Significantly, even assuming that father abused methamphetamine, there was no evidence that his purported methamphetamine abuse placed the children at risk of serious physical harm. Father did not live with the children. As children's counsel acknowledged at the jurisdictional hearing, father was not a custodial parent. Although the children were young, there was no evidence that father ever had custody of the children outside of mother's presence. This is not a case where the undisputed facts support only the conclusion that the juvenile court was required to sustain the petition. We cannot say that the evidence was " 'of such a character and weight as to leave no room for a judicial determination' " that the petition should be dismissed. (In re I.W., supra, 180 Cal.App.4th at p. 1528.)
Finally, the children state: "[F]ather poses a . . . risk to the children, given his open and frequent use of dangerous drugs, his criminal use of firearms and his open participation in gang activities." The children offer no record citation for their statements. We have discussed father's substance use and concluded that the record lacks evidence of substance abuse as well as evidence that father's assumed substance abuse posed a risk to the children. The children fail to show how their remaining statements are relevant to any allegation in the petition.
B. Appellants Fail to Demonstrate that the Juvenile Court Erred In Dismissing Allegations that Mother Endangered the Children by Allowing Father in Her Home
DCFS alleged that mother allowed father "a known methamphetamine user to frequent the child's home while under the influence of methamphetamine" and that mother's conduct placed the child at risk of serious physical harm.
Although the children request that this court reverse the juvenile court's order dismissing the foregoing allegations, they offer no evidence or legal authority in support of their argument. The children therefore fail to demonstrate that the juvenile court had to sustain the foregoing allegations in the petition. We also observe that the record contained no evidence that father posed a risk to the children in mother's home because there was no evidence that father was left alone with the children. Moreover, there was evidence that at the time of the jurisdictional hearing, MGM indicated that she would not permit father into her home anymore. Based on the entire evidence, the children have not demonstrated that the evidence compelled the juvenile court to find in their favor and sustain the allegation in the petition that mother placed the children at risk by allowing father into her home. (In re I.W., supra, 180 Cal.App.4th at p. 1528.)
DISPOSITION
The juvenile court's order dismissing the petition is affirmed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J. We concur:
CHANEY, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.