Opinion
B337439
07-30-2024
In re S.I. a Person Coming Under the Juvenile Court Law. v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; D.A., Petitioner, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Parties in Interest.
Los Angeles Dependency Lawyers, Emily Berger, Domnika Anna Campbell, Steven Lory for Petitioner. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Melania Vartanian, Deputy County Counsel, for Real Party in Interest. Children's Law Center, Kristin Hallak, Meredith Alexander for Minor.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Super. Ct. Nos. 20CCJP00204, 20CCJP00204I Mary E. Kelly, Judge. The petition for extraordinary relief is denied. The jurisdiction and disposition orders of the juvenile court are affirmed.
Los Angeles Dependency Lawyers, Emily Berger, Domnika Anna Campbell, Steven Lory for Petitioner.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Melania Vartanian, Deputy County Counsel, for Real Party in Interest.
Children's Law Center, Kristin Hallak, Meredith Alexander for Minor.
COLLINS, J.
Mother D.A. filed a petition for extraordinary writ relief after the juvenile court denied reunification services with her child, S., under Welfare and Institutions Code section 361.5, subdivision (b)(10) and set the matter for a permanency planning hearing under section 366.26. Mother contends the court's finding that she did not make a "reasonable effort" to remediate the problems that led to the termination of services for S.'s older siblings was not supported by substantial evidence. She further contends that the court erred in finding she was a current abuser of marijuana and cocaine and in removing S. from her care. We deny the petition for extraordinary writ relief and affirm the jurisdiction and disposition orders of the juvenile court.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
I. The Family
Mother and father, G.I., are parents to nine children. Their six eldest children, I., D., J., Em., V., and Ay., were born between 2012 and 2018. Es., their seventh child, was born in June 2020. Am., their eighth child, was born in November 2021. And S., their ninth child and subject of mother's petition, was born in January 2024.
II. Previous Juvenile Court Proceedings
A. Inconclusive Referrals
In April 2015, a few days after J. was born, the Los Angeles County Department of Children and Family Services (DCFS) received a report alleging that mother had tested positive for amphetamines and methamphetamine during a prenatal visit in February 2015. Mother denied using drugs, and she and J. both tested negative for all substances. Mother attributed the positive test to an "isolated incident" in which a friend offered her what appeared to be a cigarette at a party; mother said she inhaled a single time. DCFS closed the referral as inconclusive, noting there were no safety concerns or other risk factors present at the time.
In September 2015, DCFS received a report of a domestic violence incident during which father allegedly pushed mother down and choked her while she was trying to put D. to bed. The referrer reported that father was arrested after the incident; subsequent investigation revealed that father had been arrested on a previous DUI warrant, not for the domestic violence incident. Father reported that he drank "moderate levels of alcohol," but DCFS found no "concerning behaviors indicative of excessive alcohol use" or any evidence that father's ability to care for the children was impaired. During a follow-up visit, apparently after Em. was born in April 2016, DCFS found rats and cockroaches in the home. DCFS noted that none of the children appeared to have been bitten or become ill due to the infestations, to which "parents appear to be responding appropriately." DCFS also noted that despite experiencing "numerous stressors," including financial strain and cancer treatment for I., the family had strong support from relatives and parents were "fulfilling the children's medical and educational needs" and "the children's minimum level of care." DCFS closed the referral as inconclusive but provided the family with a referral for supportive services.
B. Sustained Petitions
In November 2019, DCFS received a report alleging that parents engaged in a domestic violence incident while they were intoxicated after a party. The reporter stated that the children were not present. According to the referrer, mother and father argued because father believed another man at the party gave mother a drink. Father kicked mother in the buttocks, mother pushed him in response, and father then grabbed mother by the collar and punched her in the face. Mother sustained bruising, swelling, red marks, and a bloody nose. Father was arrested, but mother declined an emergency protective order.
DCFS subsequently detained all six eldest children and filed a petition seeking jurisdiction over them in January 2020. When DCFS was placing the children in a foster home on January 10, 2020, a social worker observed "about 20" bruises on Em.'s legs. Em., who was three, told the social worker "it was from mommy" and "made a slappingmotion [sic] on her leg to demonstrate." I., who was seven, told the social worker that parents did not hit Em.; she "bumped into things." However, I. and J. both reported during their medical examinations being hit "a long time ago" by mother, father, and maternal grandfather. No concerns were noted during the examinations of D., V., and Ay. DCFS deemed the referral stemming from the alleged physical abuse of Em. inconclusive, noting that the children were no longer residing in the family home. It nevertheless included allegations of physical abuse in the section 300 petition it filed on January 14, 2020.
The juvenile court sustained several allegations from the petition on March 10, 2020, after both parents entered no-contest pleas: a subdivision (b) allegation that the children were at risk due to parents' domestic violence and mother's failure to protect them; a subdivision (b) allegation that the children were at risk due to the "filthy, unsanitary and hazardous" conditions of the family's home, which included cockroach and rat infestations; and a subdivision (b) and (j) allegation that the children were at risk because mother and father struck the five eldest children with objects including hangers, belts, sandals, and toys, and maternal grandfather struck the four eldest children with objects including hangers, belts, sandals, and a wooden stick. The children were declared dependents and suitably placed. The court ordered reunification services. The children were returned to parents' home on March 9, 2021, but remained under the jurisdiction of the court.
A juvenile court may take jurisdiction over a child under section 300, subdivision (b)(1) where the "child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of . . . [t]he failure or inability of the child's parent or guardian to adequately supervise or protect the child" or due to the parent's inability to provide regular care due to substance abuse. A juvenile court may take jurisdiction under subdivision (j) where the child's sibling has been abused or neglected as defined in earlier subdivisions of section 300, and there is a substantial risk the child also will be abused or neglected under those same provisions. (See § 300, subds. (b), (j).)
On April 23, 2021, DCFS filed a subsequent petition concerning the six eldest children under section 342 and a new section 300 petition concerning Es., who had been born in June 2020, after allegations from the previous section 300 petition were sustained. In the section 342 petition, DCFS alleged in count b-1 that mother tested positive for amphetamines and methamphetamine on April 5, 2021, and that her use of these drugs interfered with her supervision of the six eldest children and placed them at risk. Count b-2 contained similar allegations regarding father, who tested positive for the same substances on March 31, 2021. DCFS included the same allegations, numbered b-3 and b-4, respectively, in the section 300 petition concerning Es. It further alleged that Es. was a child described under section 300, subdivision (j) due to parents' domestic violence (count j-1) and parents' and maternal grandfather's striking of the elder siblings (count j-2). Notably, the domestic violence count in the petition concerning Es. alleged that mother had been holding Ay. at the time of the post-party domestic violence incident; this detail was absent from the section 300 petition concerning the elder six siblings.
The juvenile court sustained the above allegations in the section 342 and section 300 petitions on June 18, 2021. It ordered all seven children suitably placed and ordered family reunification services. The court continued family reunification services at the six-month review hearing on December 16, 2021. According to the CSW who handled the case, mother was ordered to participate in a six-month full drug/alcohol program with aftercare, submit to random or on demand drug/alcohol testing, attend a support group for victims of domestic violence, attend individual counseling, and attend conjoint counseling with father.
The CSW reported that mother completed a six-month outpatient drug program and provided a certificate of completion from her domestic violence group. Mother "did not show for any of the DCFS random or on demand drug testing." The CSW was not able to verify mother's completion of the drug program or her attendance at individual counseling. Mother was inconsistent with her visitation.
Parents' eighth child, Am., was born in November 2021. He and mother tested positive for amphetamine at the time of his birth. DCFS filed a section 300 petition concerning Am. on December 15, 2021. The juvenile court sustained several allegations from that petition on March 11, 2022, including a subdivision (b) allegation that Am. was born suffering the detrimental condition of a positive amphetamine test; a subdivision (b) and (j) allegation concerning mother's substance use; a subdivision (b) and (j) allegation concerning father's substance use; and subdivision (j) allegations concerning parents' domestic violence in the presence of Ay. and physical abuse of the elder siblings. The court declared Am. a dependent and ordered him suitably placed. Family reunification services were ordered.
On August 11, 2022, the juvenile court terminated parents' family reunification services for the seven eldest children, I., D., J., Em., V., Ay., and Es. The court terminated parents' family reunification services for Am. on February 2, 2023.
III. Proceedings Concerning S.
A. Referral and Initial Investigation
S. was born in early January 2024. He and mother both tested negative for all substances. S. came to the attention of DCFS after mother disclosed to the referrer that her eight older children had been removed from parents' care. When children's social workers (CSWs) responded to the hospital, they noted that mother was caring for S. appropriately and breastfeeding him. A nurse reported that mother and S. seemed to be recovering well and there were no concerns, despite mother reporting that she did not receive prenatal care until she was 35 weeks pregnant.
The CSWs spoke with mother on January 4, 2024. Mother denied current drug use and said the last time she used drugs was "two years ago," when she and Am. tested positive at his November 2021 birth. Mother denied using any type of substance while she was pregnant with S.; she attributed her lack of prenatal care to difficulty obtaining referrals and accessing care. Mother stated that she began using drugs "maybe 3 or 4 years ago," and also said five years ago. She said that she first used methamphetamine, her preferred substance, when she was doing laundry and found some in father's pants pocket. Mother "snorted a bit of the meth," "started seeing what looked like flashlights," and "noticed that she felt more energized, and she was being more productive with her household tasks." Her use increased over time as she "started hanging around with the wrong crowd." Mother said she and father both tested positive for methamphetamine during the case involving the other children; she stated that losing custody of them "led her to continue use of drugs on and off."
Mother reported that she complied with her court-ordered services in the previous cases, though father did not. Mother enrolled in treatment at one substance abuse program, then enrolled in another a few months later but did not complete the treatment. A few months after that, she returned to the first center and completed the program. She said she had certificates of completion that she could provide to the CSWs. When asked about inconsistent drug testing during the previous cases, mother stated that she could not test sometimes because she did not have proper identification, and other times her name was not on the list when she called. Mother said she had "learned [her] lesson" about drug use and wanted to stay sober to keep S. in her care and continue visiting her other children. She agreed to test on demand. She also expressed a willingness to move out of the family home to keep S. safe if father failed to address his substance abuse issues.
Mother drug tested at DCFS's request on January 8, 2024. The test was positive for a marijuana metabolite and a cocaine metabolite, benzoylecgonine. When asked about these results, mother denied using any drugs. She stated that she last smoked marijuana about a year ago and reiterated her previous statement that she had not used any drugs since Am. was born. Mother showed the CSW prescribed medication she was taking, acetaminophen with codeine, and also reported that she "ate a peanuts bar with sesame seeds" right before the test. Mother explained that she had heard that eating seeds could cause positive drug test results. The CSW expressed doubt about these explanations and concern that mother was using while caring for and breastfeeding S. Mother said she knew she had not done anything and offered to test again. She also agreed to switch S. to formula feeding, and to temporarily place him with paternal aunt as part of a safety plan. Mother tested negative for all substances on January 17, January 25, and January 29, 2024. Mother's roommates and relatives, including father, all stated that they had not seen mother use any drugs or appear under the influence.
S. was placed with paternal aunt on January 16, 2024. He remained there throughout the duration of the proceedings.
The CSW contacted a "certifying scientist" at a drug laboratory on January 23, 2024. The scientist completed a form indicating that mother's prescribed medication was not known to cause positive drug test results.
The CSW called mother on January 25, 2024. Mother reported that she was doing well and visiting S. at paternal aunt's house regularly. Mother also reiterated that she had not used any drugs and did not understand why the January 8 test was positive. A week later, on February 1, mother called the CSW and suggested that the January 8 test could have been positive due to the lab mishandling her sample. The CSW advised that this was unlikely because the "test site personnel conducting the drug testing are trained professionals," and mother responded that the site probably would not admit any error. Mother reported that she had not yet been contacted by any of the referred services, but was making her own calls to drug and alcohol agencies to inquire about openings.
On February 4 or 9, 2024, a provider screened mother for drug treatment services. On the form documenting the results, a box is checked next to the statement, "Results indicate treatment is necessary, but parent is not willing to follow through with treatment. Advised Parent about harm reduction measures, overdose prevention, and other steps that may reduce negative consequences." The form also states, however, that a clinical assessment was scheduled for February 29, 2024.
B. Section 300 Petition and Detention
DCFS removed S. from parents on February 14, 2024; he remained in paternal aunt's care. DCFS filed a section 300 petition concerning S. on February 16, 2024. The petition, which contained allegations under subdivisions (a), (b), and (j), alleged that parents engaged in domestic violence in Ay.'s presence (a-1, b-3, j-3), parents and maternal grandfather physically abused the elder children (a-2, b-4, j-4), and that mother (b-1, j-1) and father (b-2, j-2) had unresolved substance abuse issues. The allegations regarding mother's substance abuse alleged that she was "a current abuser of cocaine and marijuana" and had a history of using methamphetamine and amphetamine. The petition advised that DCFS "may seek an order pursuant to [section] 361.5 that no reunification services shall be provided to the family."
The juvenile court held a detention hearing on February 20, 2024. The court ordered S. detained. It ordered visitation and family reunification services for parents and ordered drug testing referrals for mother. The court set the jurisdiction hearing for March 28, 2024, the same day as the elder children's section 366.26 permanency placement hearing.
C. Jurisdiction/Disposition Report
DCFS filed a jurisdiction/disposition report on March 12, 2024. The report documented the previous DCFS referrals and history summarized above. It also documented a DCFS dependency investigator's (DI) interviews with parents about the current allegations. Mother disputed that she had been holding Ay. during the domestic violence incident. Mother further stated that she and father had "learned to calm down" from their previous domestic violence classes, which also taught mother how to "identify flags" of violence. Mother told DCFS that the physical abuse allegations were also "exaggerated"; maternal grandfather hit I. with a hanger on a single occasion, and both mother and father told him not to do that. Mother said she disciplined the children when they were in her care by putting them in time-out and currently disciplined them by talking to them.
Mother disputed the substance abuse allegations. She stated, "I did not test positive," and said that if someone had told her "about the positive right away I would have tested somewhere else to show I was negative." When asked why she tested positive, mother explained that the ID procedure had been different than normal that day and she left her sample in the bathroom before testing staff collected her ID. Mother further stated that she did not see anyone collect her sample from the bathroom before the next person went in. Mother also said that the "peanut and sesame seed snack bar" she ate also could have caused the positive results. Mother reported that she had not used methamphetamine since Am.'s birth. When the DI asked why she used at that time, mother said, "I don't know, I'm am [sic] not sure, I just did it." Mother said she first used methamphetamine in "[m]aybe 2020," after she found some in father's pocket while doing laundry. Mother said she "used maybe 4 to 5 times in [her] life" after that, "only used meth," and "never used cocaine."
When the DI asked why reunification services with the other children were terminated, mother answered, "Because I did not go to test. I did finish my classes and got certificates but the testing." Mother explained that she did not test because "I lost my ID and I got made an ID but by that time I no longer had [family reunification services]." When the DI noted that IDs do not take long to make, and asked if there were "other obstacles" to mother testing consistently, she stated, "I lost my ID and other times I just did not check to see if I needed to test."
Mother reported that she completed parenting, domestic violence, counseling, and substance abuse treatment services. However, when asked for more details, mother said she did not actually complete her inpatient substance abuse treatment. She stated, "I had a couple days left and I wanted to leave." She further stated, "I was in isolation after a group of us went to the dentist but some girls went to the 99 cents store and I left to the inpatient and they got there later. When I was in isolation, I could not shower, brush my tooth [sic] or do much. I could not take it and asked to leave to an outpatient" at a different provider. Mother completed one month of outpatient services before leaving. The DI asked what obstacles prevented mother from completing the treatment, and mother responded, "I just stopped going and I thought to myself, what was the point if I did not have my kids with me. I just felt that it was really hard and I got clean on my own instead. I felt so bad when I tested positive this time. I think it's the system though because I am clean." The DI asked mother what she did to get clean on her own, and mother said she exercised, went to the park, and spent time with friends. When asked about her triggers, mother said, "I did not suffer much because I was not a frequent user." Mother denied any history of mental health issues.
The DI contacted a manager at the drug testing facility on March 5, 2024. The DI shared mother's concerns about a clinical error with her test. The manager responded, "it was not possible as the clinics follow strict protocols," but he also said he would review the technician's notes for any irregularities and follow up with the DI if he found any. The DI also asked about the possibility of testing positive after eating the particular snack bar mother had consumed, as mother had provided a picture of the wrapper. The manager said it "was not likely." The DI contacted the manager a few days later to follow up, but there was no answer. She noted that she had not received any email suggesting the manager found irregularities in the testing protocol.
The DI asked one of the family's previous CSWs if she had any concerns about parents' ability to care for S. The CSW responded that she had not worked with the family for about a year, but based on what she had been told about the current case, "nothing has changed in their situation based on the mother's relapse. After working with us for 2 to 3 years and she is still using drugs, there is still the same concern that there was as with the older children. And dad too, they are not addressing the concerns that existed with the siblings." The CSW acknowledged that mother "finished her substance abuse" programming but opined that "it does not appear that she learned what her trigger was and she has not demonstrated a change."
The report stated that mother no-showed for several drug tests in 2023, after her services were terminated and before S. was born: March 30, April 7, April 25, May 2, June 7, and June 27. During that same period, mother tested negative on May 17, 2023. Mother tested positive for cocaine and marijuana metabolites on January 8, 2024, but had appeared for all her tests and tested negative on January 17, January 25, January 29, and February 28, 2024.
Mother's substance abuse counselor reported on March 6, 2024 that mother had enrolled in outpatient services on February 26, 2024. She stated that mother seemed motivated and had not missed any sessions, but also "has not discussed any issues yet" and was "still building trust." She added that mother had tested negative two times since beginning the program.
The DI asked S.'s caregiver, paternal aunt, about mother's drug use. Paternal aunt reported that she had smelled smoke on mother during her pregnancy with Am. When paternal aunt asked mother about her past drug use, mother said she used marijuana when Am. was born, and "the grandmother told her to keep using it because [grandmother] had her kids anyway and could care for them." Paternal aunt noted that mother seemed to have "changed" since then, particularly since S.'s birth: she cleaned the house, "fixes herself up and is neat," and seemed less depressed. Paternal aunt also reported that parents seemed to get along better now and had positive visits with S.
DCFS concluded that mother and father had not addressed their addiction or "demonstrated a commitment to rehabilitate and address the issues that have led them to use substances." DCFS gave "merit to the mother for her current attempts to participate in services," but noted that she had "a long history of participating in services and being unable to apply the skills she learned" and continued to "engage in behaviors that place the child at risk." It opined that both parents would benefit from "fully completing a substance abuse program." DCFS nevertheless recommended that the court deny reunification services.
D. Jurisdiction Hearing
The court held the jurisdiction hearing on March 28, 2024. Mother's counsel argued that the petition was "largely historic" and should be dismissed. Mother's counsel further argued that mother was enrolled in a drug treatment program and recent tests showed she was not currently using any substances. Counsel also added that mother "strongly disputes" the January 8 positive test, and reiterated that she consistently tested clean since then. S.'s counsel joined mother's counsel's request that the court dismiss the subdivision (a) counts regarding domestic violence and physical discipline, but requested the court sustain the subdivision (b) or (j) versions of those allegations because mother and father were "still minimizing the incidents that occurred" and the history was "unresolved." S.'s counsel argued that the substance abuse allegations should be sustained due to the "extensive and unresolved history." S.'s counsel asserted that even after participating in previous programming, mother was "still minimizing and not taking responsibility or accountability," including making "not plausible" denials of the January 8 positive test. S.'s counsel commended mother for reenrolling in treatment, but contended these efforts were "still too new to have actually resolved the issue." Counsel for DCFS largely joined S.'s counsel's arguments.
The juvenile court dismissed the subdivision (a) and (b) allegations relating to domestic violence and physical abuse, but sustained the subdivision (j) versions of those allegations. It also sustained the substance abuse allegations regarding both parents. As to mother, the court noted that although mother had clean tests, it was "concern[ed]" about her minimization. It added, "one cannot correct a problem one does not admit one has." The court continued the disposition to April 30, 2024 to give mother more time to progress in her programming. It directly told parents, "if you have any evidence of your efforts to either go to NA meetings or any kind of programs, make sure you get it to the social worker." The court ordered monitored visitation for both parents and gave DCFS discretion to liberalize, up to and including overnight visits for mother.
E. Additional Information
DCFS filed a last minute information on April 23, 2024. It reported that parents' visitation with S. had been increased. It further reported that a counselor at mother's drug program stated that mother was "doing well with attending her treatment schedule," was "open to assistance [and] education about recovery process," and participated in group sessions. Mother also was receiving individual substance abuse counseling weekly. She continued to test negative. DCFS again gave "merit to the mother for her current attempts to participate in services," but continued to recommend that no family reunification services be ordered.
DCFS attached a report from mother's substance abuse program. It indicated that mother had "perfect attendance" and was "[p]rogressing on majority" of her treatment plan. The report identified several "[s]trengths and accomplishments," including mother's openness to assistance, negative tests, positive interaction with other participants, participation in GED classes, and consistent and positive visitation with S. Under "Current challenges," the report stated that mother "is having difficulty understanding the full scope of her DCFS case status as it relates to recommendations made to the courts by her CSW and DCFS." Mother's "plan of action" included attendance at group and individual substance abuse counseling sessions as well as a referral for individual mental health therapy sessions.
F. Disposition Hearing and Order
The court held the disposition hearing on April 30, 2024. Mother testified that she was attending an outpatient program three days per week "for the substance abuse and two [days] for finishing my high school." Mother stated that during the seven hours she attended each day, she worked on relapse prevention, parenting, learning her triggers, and learning how to reach out for support. She testified that she was "looking into" a 12-step program but had not yet begun attending. Mother testified that she was testing clean and had learned to avoid stress, keep busy, and continue learning. She also testified that she visited S. five days a week and visited her other children on Sundays. On crossexamination, counsel for DCFS asked mother when she last used cocaine. Mother denied ever using cocaine. She said she last used marijuana "a year and a half" ago. She also testified that she did not complete her previous drug programs.
Mother's counsel requested that S. be released to mother's custody. Counsel also objected to the recommendation that services be denied under section 361.5, subdivision (b)(10), which authorizes the court to deny reunification services when a parent previously failed to reunify with the child's sibling(s) and "has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child...." He argued that "there's no doubt that [mother] is making actually more than reasonable efforts" to resolve her drug problems, citing the 21 hours per week she spent engaged in the program for the past two months, her intention to complete the program, and her clean testing. Mother's counsel argued that it would be "unfair" to "use the argument that she does not have 100 percent success in the past . . . because . . . as people mature and time goes on, things change," and mother "is clearly attempting to make those changes at this point." S.'s counsel joined these arguments about providing services to mother, asserting that mother "has demonstrated reasonable efforts to address the main issue as to why the siblings were removed from her care." S.'s counsel acknowledged that it was "concerning" that mother "is not forthcoming about why she tested positive," but asserted "that was prior to her enrolling in this current program," and argued that "reasonable efforts," not "significant changes," were the standard.
Counsel for DCFS argued that reunification services should be denied under section 361.5, subdivision (b)(10). Counsel contended that "one of the biggest indicators of addressing a situation and a problem is recognizing and admitting that you have a problem," and mother continued to maintain she never used cocaine despite the positive test result. Counsel continued, "[w]e have been down this road before with the mother entering into programs and then two months later leaving the program, not having any prenatal care until 36 [sic] weeks into the pregnancy and failing to test during that period of time. The Department believes, although the mother is making steps to go through the programs again for the past two months, the Department believes that there's a difference between making reasonable efforts to address a problem when you don't believe you have one and going through the motions to comply with what they believe the court is asking them to do." Counsel pointed to mother's excuses about the snack bar and alleged lab error, and "remind[ed] the court that back in 2015 when mother tested positive for methamphetamine, her answer was she was in a car with somebody who was smoking methamphetamine. The mother doesn't recognize that there's an issue."
The court declared S. a dependent of the court and found by clear and convincing evidence that there would be a substantial danger to him if he were returned to parents. The court further found that there were no reasonable means by which S. could be protected without removing him from parents' physical custody. It acknowledged mother's recent clean tests, but cited the series of tests she missed in mid-2023 during her pregnancy with S. and her "unreliable and inherently incredible explanations" for the most recent positive test as reasons why placing S. with her would be contrary to his welfare.
The court continued, "Mother has minimized and that's the thing that concerns me the most. In the jurisdiction disposition report, mother was minimizing her use. She did acknowledge that she didn't know why . . . she said the last time she used methamphetamine was in November 2022 when the child [Am.] was born. . . . [B]ut, you know, she - she found a dollar with some - some stuff in father's pocket and she decided to try it. I found it in his pants, and I had just gotten the kids back. This is the problem that the court sees. Mother gets the children back. She does her work, and then she relapses. Something, you know - you find something in someone's pants and you're going to sniff it, and say you didn't do anything. The powder was in a dollar, a straw fell out, and I got it, and I put it in my pocket, and I separated the clothes. It was not much. I used it four or five times in the restroom.... When she's talking to the DI, she's minimizing her struggle with addiction. And then she says that she hasn't used but she did test positive when she was breastfeeding. She did admit that she did use while she was breastfeeding the child.... [G]iven the circumstances of this case, the entry - both times mother has entered into a program, the children were returned to her and then removed. And think given these circumstances, mother rebounding - I'm always reluctant to find contrary to the . . . guardian ad litem. But in this instance, I don't believe this little child should be subjected to that. It's been a very difficult road for the other children and mother's minimization and her denials of her drug use just makes me think it's not a reasonable effort."
The court accordingly found "by clear and convincing evidence that the predicates for bypass under code section 361.5(b)(10) apply both as to mother and father. Mother does have evidence, but . . . the court does not believe it's reasonable efforts when you're still in denial and you're in a program. She's not yet entered a 12-step program. Perhaps once she's done that and if she realizes that rigorous honesty is part of the 12-step program, she may have a different feeling and file a [section] 388 [petition]. At this juncture the court believes there is clear and convincing evidence to warrant the bypass. On that basis, the children will be bypassed. I find it is in the best interest of the child to set a selection and implementation hearing under code section 366.26." The court subsequently "commend[ed] mother and father for working at their sobriety," encouraged them to "keep your sobriety intact," and urged them to "discuss with your attorneys a 388."
DISCUSSION
I. Jurisdiction
Mother first contends the court's jurisdictional finding that she is a "current abuser of cocaine and marijuana" is not supported by substantial evidence. She does not challenge the court's other jurisdictional findings under section 300, subdivisions (b)(1) and (j). Given this posture, real party in interest DCFS argues that mother's jurisdictional challenge is not justiciable. In the alternative, DCFS argues that the finding is supported by substantial evidence.
Real party in interest S. does not address justiciability. He contends only that substantial evidence supports the jurisdictional finding at issue.
A. Justiciability
In the dependency context, just as in others, we are "tasked with the duty '"to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.'" (In re D.P. (2023) 14 Cal.5th 266, 276 (D.P.).) A case becomes moot when it is not possible for a court to provide effective relief to the appealing party. (Ibid.) For instance, "where there are multiple findings against one parent," or where only one parent challenges jurisdictional findings affecting both, the continued validity of the unchallenged findings "may render moot the parent's attempt to challenge the others." (Id. at pp. 283-284.) The general rule is that "'[a]s long as there is one unassailable jurisdictional finding, it is immaterial that another might be inappropriate.'" (Id. at p. 283.) However, if the parent can demonstrate "a specific legal or practical consequence that will be averted upon reversal, the case is not moot, and merits review is required." (Ibid.) The same is true if a jurisdictional finding "'serves as the basis for dispositional orders that are also challenged on appeal.'" (Ibid.)
Mother contends the finding that she currently abuses cocaine and marijuana falls into the latter category because it "was used by the juvenile court at the dispositional phase to find that Mother continued to have a substance abuse problem and deny her reunification services." We agree. Mother's continued minimization, denial, and excuses related to the positive test for cocaine and marijuana were significant factors in the court's decision to remove S. and its findings that she had not made a reasonable effort to treat the problems that led to removal of the elder children. Mother challenges both these dispositional orders in this proceeding, rendering her jurisdictional challenge justiciable.
B. Analysis
"[I]n dependency proceedings, the child welfare agency must prove by a preponderance of the evidence that the child who is the subject of the petition comes under the court's jurisdiction." (In re N.M. (2011) 197 Cal.App.4th 159, 168.) "'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.]'" (In re I.J. (2013) 56 Cal.4th 766, 773.) We do not attempt to resolve evidentiary conflicts, reweigh the evidence, or revisit the juvenile court's credibility determinations. (See In re M.R. (2017) 8 Cal.App.5th 101, 108.) That is, "we do not consider whether there is evidence from which the juvenile court could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did draw." (Ibid.) The appealing parent bears the burden of showing a jurisdictional finding is not supported by substantial evidence. (In re N.M., 197 Cal.App.4th at p. 168.)
Substance abuse may serve as a basis for a jurisdictional finding under section 300, subdivision (b) if it poses a substantial risk of harm to the child at the time of the jurisdiction hearing. (See § 300, subd. (b)(1)(D); In re Cole L. (2021) 70 Cal.App.5th 591, 601 (Cole L.).) "[T]he court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child." (Id. at p. 602.) "The court may consider past events in deciding whether a child presently needs the court's protection," and the parent's past conduct may be probative of current conditions if there is reason to believe the conduct will continue. (Ibid.) The inquiry is a cumulative one; the court "'must consider all the circumstances affecting the child, wherever they occur.'" (In re T.V. (2013) 217 Cal.App.4th 126, 133.)
Substantial evidence supported the court's jurisdictional finding regarding mother's current substance abuse. Despite mother's continued denial of using cocaine or marijuana, and, as she puts it, the "unanimous refutation of Mother's current substance abuse from those in Mother's immediate circle," an objective drug test showed cocaine and marijuana metabolites in mother's system mere days after S.'s birth. The court was permitted to credit the results of the test over mother's denials and claims of lab error and diet interference with the test, particularly in light of mother's past struggles with prenatal substance abuse and minimization including inconsistent statements about her usage and excuses for positive results. A positive drug test is substantial evidence of substance use, and it was undisputed that mother was breastfeeding S. at the time, placing him at risk of ingesting the substances.
Mother contends that the test result is questionable, because the report states, "Drug Screening for this sample has been performed according to SOP for Non-Regulated Drug Testing. Any Positive results will be confirmed by GC/MS," and no further confirmation appears in the record. Mother asserts that further testing should have been done as "a safeguard to ensure that decisions affecting families are based on accurate and reliable evidence," and the putative omission here "highlights a potential lapse in the evidentiary process." Mother ignores that this language appears on all the drug tests in the record performed by that lab. She also ignores that there is no evidence the confirmation process was not performed here. Her speculation of impropriety does not render the evidence insufficient, particularly where DCFS made a specific inquiry to the manager of the lab after mother suggested there may have been irregularities with the test.
Mother also asserts there is a "mismatch between the drug screen results," mother's denials and subsequent clean tests, and the "counter-testimony from family members and roommates." We do not reweigh the trial court's resolution of evidentiary conflicts or revisit its credibility determinations. The question at this juncture is whether there is substantial evidence, contradicted or uncontradicted, to support the court's finding. There is. Mother's challenge to the jurisdiction finding accordingly fails.
II. Removal
Mother next argues that substantial evidence did not support the juvenile court's disposition order removing S. from her care. She contends DCFS failed to investigate reasonable means available to keep S. in her care, specifically "exploring whether [mother's drug treatment] program could offer residential support for Mother and S.[], while she bettered herself and maintained a regimen of clean tests." S. and DCFS respond that substantial evidence supported the order. We conclude that substantial evidence supports the order.
DCFS also contends that mother forfeited or waived any argument regarding removal by failing to argue below that reasonable means existed to keep S. in her care. Although issues not raised in the trial court generally cannot be raised on appeal, "'[t]he contention that a judgment is not supported by substantial evidence, . . ., is an obvious exception to the rule.'" (In re Javier G. (2006) 137 Cal.App.4th 453, 464.) We accordingly reach the merits of mother's argument.
A juvenile court may remove a child from the physical custody of his or her parent if it finds by clear and convincing evidence that there "is or would be a substantial danger to the physical health, safety, protection, or physical or emotional wellbeing of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).) The court must determine whether reasonable efforts were made to eliminate the need for removal and state the facts on which its decision to remove the child is based. (§ 361, subd. (e).) We review this dispositional order for substantial evidence, "keeping in mind that the trial court was required to make its order based on the higher standard of clear and convincing evidence." (In re Ashly F. (2014) 225 Cal.App.4th 803, 809; see also Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996.)
Substantial evidence supported the removal of S. here. S. had not been in mother's care since January 16, 2024. When he was in her care, mother used substances while breastfeeding him, placing him at risk. Mother also continued to deny and minimize the serious nature of her substance abuse, notwithstanding her active participation in a treatment program and nascent steps toward consistent sobriety. Moreover, the court found that S. was at risk due to parents' domestic violence despite parents' previous participation in services, and there is no indication that either mother or father was taking steps to rectify that issue.
Mother asserts that DCFS should have considered whether her outpatient substance abuse treatment program could offer "residential support," and that its "oversight . . . does not rise to clear and convincing evidence that S.[ ] would be in substantial danger while in Mother's care." To the extent an outpatient program would provide housing, the absence of stable or safe housing was not a concern in this case. The primary issue was parents' substance abuse, and mother tested positive despite the presence and support of several roommates and family members, previous participation in treatment programming, and previous experience with the removal of her children. Substantial evidence supported the court's finding that S. remained at risk of harm due to mother's ongoing struggles with substance use and minimization of its seriousness and potential dangers it could cause to S.
III. Denial of Reunification Services
Mother's final and most substantive contention is that the juvenile court erred by denying her reunification services. Mother argues that she "made reasonable efforts to address her substance use because she was complying with her programs and continued to test negative." She further contends that "admission of relapse" is not a statutory requirement and "infringes on the parent's statutory right to appeal jurisdictional findings." Although S. argued in favor of jurisdiction and removal, he agrees with mother that she made reasonable efforts to treat her substance abuse issues and thus should have received services. DCFS argues that substantial evidence supported the court's decision to deny services. "As a general rule, when a child is removed from parental custody under the dependency laws, the juvenile court is required to provide reunification services to 'the child and the child's mother and statutorily presumed father....'" (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120, quoting § 361.5, subd. (a) (Jennifer S.); see also In re Jayden M. (2023) 93 Cal.App.5th 1261, 1271 (Jayden M.).) The purposes of these services are to remediate the conditions that led to loss of custody and facilitate the reunification of the child and parent in accordance with the overarching goal of family preservation. (Jennifer S., supra, 15 Cal.App.5th at p. 1120.) However, the Legislature has recognized that there are "cases in which the delay attributable to the provision of reunification services would be more detrimental to the minor than discounting the competing goal of family preservation." (Ibid.; see also Jayden M., supra, 93 Cal.App.5th at p. 1271.) It therefore codified so-called bypass provisions in section 361.5, subdivision (b), which describes various circumstances under which reunification services need not be provided. (Jennifer S., supra, 15 Cal.App.5th at p. 1121; Jayden M., supra, 93 Cal.App.5th at p. 1271.)
The bypass provisions "are 'narrow in scope' and reach situations where '"the likelihood of reunification'" is '"so slim"' due to a parent's past failures that 'expend[ing]' the Department's '"scarce"' resources on reunification services is likely to be 'fruitless,' or when 'attempts to facilitate reunification' would otherwise not 'serve and protect the child's interest.'" (Jayden M., supra, 93 Cal.App.5th at p. 1271.) "'[F]ruitless' is a pretty high standard. If the evidence suggests that despite a parent's substantial history of misconduct with prior children, there is a reasonable basis to conclude that the relationship with the current child could be saved, the courts should always attempt to do so.... The failure of a parent to reunify with a prior child should never cause the court to reflexively deny that parent a meaningful chance to do so in a later case." (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.)
The bypass provision at issue here is section 361.5, subdivision (b)(10), which "'recognizes the problem of recidivism by the parent despite unification efforts.'" (Jennifer S., supra, 15 Cal.App.5th at p. 1121.) It states that reunification services need not be provided if the juvenile court finds by clear and convincing evidence "[t]hat the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and . . . this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian." (§ 361.5, subd. (b)(10)(A).) In the juvenile court, DCFS bears the burden of proving the elements of section 361.5, subdivision (b)(10) by clear and convincing evidence. (Jayden M., supra, 93 Cal.App.5th at p. 1272.) The only element at issue here is the "reasonable effort to treat the problems that led to the removal of the sibling." "The 'reasonable effort[s]' necessary to avoid subdivision (b)(10) bypass are not synonymous with '"cure."'" (Jennifer S., supra, 15 Cal.App.5th at p. 1121.) "They must, however, be more than '"lackadaisical or half-hearted."' (Ibid.) The genuine nature of the efforts is not determinative. The juvenile court may consider "'the duration, extent and context, of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness. And while degree of progress is not the focus of the inquiry, a parent's progress, or lack of progress, both in the short and long term, may be considered to the extent it bears on the reasonableness of the effort made.'" (Ibid.)
We review an order denying reunification services under the bypass provisions for substantial evidence. (Jennifer S., supra, 15 Cal.App.5th at p. 1121; see also Jayden M., supra, 93 Cal.App.5th at p. 1273.) As in our substantial evidence reviews of jurisdictional findings and removal orders, "we ask whether there is sufficient evidence in the record that is reasonable, credible, and of solid value-when viewed in the light most favorable to the juvenile court's determination-for a reasonable trier of fact to conclude that the Department carried its burden by clear and convincing evidence." (Jayden M., 93 Cal.App.5th at p. 1273.) We do not reassess the court's credibility determinations or reweigh the evidence. (Jennifer S., 15 Cal.App.5th at p. 1121.)
Here, the juvenile court found that mother's recent efforts at sobriety, while genuine and commendable, were not reasonable in light of her lack of insight into and continued minimization of her struggle with substance use. The court also found mother's testimony regarding the positive test "unreliable and inherently incredible." These findings appropriately contextualize mother's efforts and are supported by substantial evidence.
Mother failed to appear for numerous drug tests during her pregnancy with S. Although she and S. did not test positive for any substances at the time of his birth, mother tested positive for both cocaine and marijuana days later, while she was breastfeeding S. Like her explanations for her initial uses of methamphetamine-a single inhalation from a cigarette and a chance happening upon the drug while doing laundry-and her previous failures to test, mother's explanations for the most recent positive test were weak and sought to absolve her of responsibility. Moreover, mother was pregnant at the time of the cigarette incident; she was under DCFS supervision and had recently reunified with and was caring for the six eldest children at the time of the laundry incident; she used methamphetamine during her pregnancy with Am.; and she was breastfeeding S. when she most recently tested positive. Mother thus continued to place her children at risk despite previously participating in drug treatment programming, which she did not complete because she "wanted to leave" and "just stopped going." During the early phases of this case, in February 2024, mother was "not willing to follow through with treatment." The most recent report from mother's current program stated that mother continued to have "difficulty understanding the full scope of her DCFS case status" despite her yearslong involvement with DCFS and months of participation in the program. This evidence supports the court's conclusion that mother lacked insight into her substance use and therefore was not making reasonable efforts to resolve the issue.
Mother contends that her "current consistent compliance with the pre-Disposition programs is indicative of her commitment to reunify with her child." She also asserts that the court failed to properly contextualize the drug tests she missed in 2023, because her services for S.'s siblings had been terminated by that point, "the Department had ceased its active involvement with her," and the tests do not "fully reflect the efforts and circumstances of Mother's present situation." Additionally, mother argues that her "continued post-referral negative drug tests are a solid, quantifiable measure of her progress" and "important benchmarks that indicate not just temporary compliance but a maintained trajectory away from the problems that initially resulted in her children's removal." S. makes similar arguments. At bottom, these arguments are all requests that we reweigh the evidence. We may not do so. The question under the substantial evidence standard of review is whether the evidence supports the decision that was made, not whether there is evidence supporting a different decision.
Mother also contends that this case is distinguishable from Jayden M., supra, 93 Cal.App.5th 1261, in which the court found that substantial evidence supported bypass of reunification services under section 361.5, subdivision (b)(10). We find Jayden M. instructive, not distinguishable. In Jayden M., the mother had a decades-long history of substance abuse. Three of her children tested positive for various substances when they were born; mother failed to reunify with them and with child Jayden's other older siblings. (See Jayden M., 93 Cal.App.5th at p. 1267.) Jayden was born in 2021 with opiates in his system; mother offered "various reasons" for her relapse and claimed she was taking Suboxone in an effort to stay off heroin. (Id. at p. 1268.)
After DCFS detained Jayden and filed a section 300 petition concerning him, mother applied to and was accepted into an outpatient drug program. During the first two months of the program, "mother's participation was unsatisfactory"-she made excuses and was "just 'going through the motions.'" (Id. at 1269.) Mother subsequently turned things around, however. In the last few weeks of the program, her attendance and participation "improved dramatically," she "ma[de] great strides in staying committed to long term recovery," and tested clean for the duration of the program, which she fully completed. (Ibid.) The juvenile court found that her efforts were commendable, but "did not eliminate the court's 'concern[s]' in light of her 20-year history of drug abuse problems and prior dependency cases." (Id. at p. 1270.) It consequently found bypass warranted under section 361.5, subdivision (b)(10), though it advised mother that continued efforts "'would be a good indicator' of mother's commitment to her sobriety," and perhaps could support a future petition to change the order under section 388. (Ibid.)
Mother appealed the order, arguing that she made reasonable efforts to correct her substance abuse problems. While acknowledging that mother "made some effort to address her longstanding drug abuse problem," the court of appeal found that substantial evidence supported the juvenile court's bypass order. (Jayden M., supra, 93 Cal.App.5th at p. 1276.) It pointed to the "backdrop of her entire drug history dating back to the removal of [an older child] from her custody in 2001," the "not wholehearted" nature of mother's participation in the current outpatient program, and mother's repeated history of past relapses. (Id. at pp. 1276-1277.) The court also observed that "mother's four months of uneven effort is a drop in the bucket when viewed in the larger context of a 20-year history of serious and consistent drug abuse" (id. at p. 1276), and noted the "practical reality that short and recent periods of sobriety are often not enough to counter a longstanding pattern of use and relapse." (Id. at p. 1277.)
Here, mother asserts that her "substance history was a fifth of that of the mother in Jayden M., she complied with the programs, classes, and testing since the case began, and there had been no further domestic violence incidents between the parents." She urges us to "distinguish Mother's current efforts from those in Jayden M., as she has demonstrated the capability and dedication to meaningfully participate in her programs, warranting the provision of reunification services." Mother's efforts are largely similar to those made in Jayden M., however. At the time of the disposition hearing, mother had been participating in treatment for only two months. Although she immediately complied with the program, two months is a relatively short amount of time of sobriety when compared with mother's at least four (and nearly nine, if the cigarette incident is included) years of substance use. Like the mother in Jayden M., mother has made considerable and commendable strides toward sobriety, including consistently testing negative. But unlike the mother in Jayden M., she continued to make excuses for the positive test result, even when presented with evidence that those excuses were implausible. Mother also minimized her use, claiming she used drugs only four or five times, and was unable to identify any triggers due to her allegedly infrequent use. "One cannot correct a problem one fails to acknowledge." (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.)
To that point, mother contends the juvenile court improperly required her to admit relapse as a precondition to receive services, thereby "unfairly forc[ing] a parent to choose between challenging the allegations on factual grounds or securing vital family reunification services." The record does not support mother's contention that she was forced into this dilemma. Although the court emphasized mother's minimization, lack of insight, and denial, it did not require her to admit any specific allegations to demonstrate she was making a reasonable effort. It has long been recognized that "denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision." (In re Esmerelda B. (1992) 11 Cal.App.4th 1036, 1044; see also In re A.F. (2016) 3 Cal.App.5th 283, 293.) Indeed, because mother tested positive on multiple occasions while under DCFS supervision, the court reasonably could conclude that her denial would continue to impede her progress toward sustained sobriety. Her general denials of drug use persisted across several dependency cases, as did her apparent failure to appreciate the risks her use posed to her children.
Mother's current efforts to resolve her substance abuse issues are commendable. However, the juvenile court's finding that mother's efforts were not reasonable at the time of the disposition hearing is supported by substantial evidence and accordingly must be affirmed.
S. contends that it would be in his best interest for mother to be provided with services. When a court finds that bypass is warranted, it "shall not order reunification . . . unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).) This query is the second step of the "two-step, burden-shifting procedure for bypassing reunification services." (Jayden M., supra, 93 Cal.App.5th at p. 1272.) If DCFS carries its initial burden of proving bypass is warranted by clear and convincing evidence, "the burden shifts to the parent to prove that it is in the child's best interest for the juvenile court to exercise its discretion to provide reunification services." (Ibid.) Mother made no attempt to carry that burden, either here or in the juvenile court. After noting the "very difficult road" S.'s siblings had endured, the juvenile court expressly found that it was in S.'s best interest to set a selection and implementation hearing under code section 366.26. Without some argument from the petitioning party, we have no basis to disturb this finding.
DISPOSITION
The petition for extraordinary writ relief is denied. The jurisdiction and disposition orders of the juvenile court are affirmed.
We concur: CURREY, P.J. MORI, J.