Opinion
B309564
06-25-2021
In re B.K., a Person Coming Under the Juvenile Court Law. v. AARON M., Defendant and Appellant. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephanie J. Reagan, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from findings and order of the Superior Court of Los Angeles County, No. 20CCJP05301A Tamara Hall, Judge. Affirmed.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephanie J. Reagan, Deputy County Counsel for Plaintiff and Respondent.
EDMON, P. J.
Aaron M. (father) appeals jurisdictional findings and a dispositional order as to his newborn daughter, B.K. B.K. was declared a juvenile court dependent and removed from father's custody after B.K. and her mother tested positive for methamphetamine at B.K.'s birth. Father contends substantial evidence did not support the juvenile court's findings that he failed to protect B.K. and that he has a historical and current substance abuse problem. Because the removal order was based on those findings, he further contends that the order must also be reversed. We reject his contentions.
Mother is not a party to this appeal.
BACKGROUND
I. B.K.'s birth and the petition
B.K. was born in October 2020 and is mother and father's first child. Mother and father are unmarried and have lived together for three to four years. At B.K.'s birth, she and mother tested positive for methamphetamine. B.K. suffered withdrawal symptoms and spent time in the neonatal intensive care unit.
Accordingly, the Los Angeles County Department of Children and Family Services (DCFS) filed a Welfare and Institutions Code section 300 petition. The petition alleged under section 300, subdivision (b)(1), that parents failed to protect B.K. As to mother, the petition alleged she historically and currently abused methamphetamine and fentanyl, including during her pregnancy, and had tested positive for methamphetamine when B.K. was born. As to father, the petition alleged he knew about mother's substance abuse but failed to protect B.K. from it. The petition further alleged that father had a history of substance abuse and currently abused marijuana, rendering him incapable of providing for the child.
All further undesignated statutory references are to the Welfare and Institutions Code.
II. Detention report
According to the detention report, mother made inconsistent statements about her drug usage. She told the social worker that she used methamphetamine just twice during her pregnancy, once before she knew she was pregnant and once right before delivery. However, she told a nurse that she used methamphetamine one to two times a month and told another member of the hospital staff that she used it daily-statements she later denied making. She admitted that she had been smoking fentanyl for two years for neck and back pain, and that she bought it on the street. Mother's veins were collapsed, indicating heavy drug use. Mother had no prenatal care and did not realize she was pregnant until three months along.
Although mother said father knew she used drugs for pain, she also told the social worker that she “ ‘forgot to tell him' ” about her drug use. The social worker talked to father, who said he knew about mother's drug use, including pills/fentanyl for back pain, but not the extent of her use. Father described mother as secretive. When the social worker told father about how frequently mother used drugs, he seemed shocked, took off his hat and rubbed his head, and said he did not know how bad it was. To him, mother looked healthy, and she had done a good job of hiding her drug use. The social worker described mother and father as failing to understand that using drugs is dangerous to mother and child.
Mother said father had a drug history and had smoked marijuana in high school, but he did not currently use drugs or alcohol. Father also told the social worker that he had three convictions for driving under the influence (DUI) in 2012, when he went on a 36-day “ ‘bender.' ” As a result, he was “ ‘forced' ” to go to Alcoholics Anonymous for over a year in 2012. He had therapy to help with his drinking, and he stopped drinking because he didn't crave it anymore. Father also said that now he barely drinks, doing so occasionally. He denied current or past drug use but admitted that he sometimes eats “edibles.” He does not smoke marijuana because it would hurt his lungs.
Parents consented to detention. The juvenile court detained B.K. and placed her with paternal aunt.
III. Jurisdiction and disposition report
The social worker called father multiple times and left messages to which father did not respond. Believing that parents were “ghosting” her, the social worker went unannounced to their home, a two-bedroom apartment they shared with maternal grandmother. In the bedroom mother and father shared, the social worker found seven needles in mother's nightstand and a broken black pipe in a vanity drawer. Mother said she hadn't been sleeping in the room, and she was “ ‘so mad those are in there. They are old.' ” When the social worker explained that mother's story that she puffed methamphetamine only once was inconsistent with B.K.'s weeks-long hospitalization, mother continued to deny more frequent drug usage.
Father also denied using drugs. Although the detention report had mentioned he used marijuana, he now said he had not used it for seven years.
The social worker tried to talk to maternal grandmother, but she was afraid parents would overhear them. It seemed to the social worker that mother was trying to eavesdrop on their conversation. In private, maternal grandmother said that parents lived rent-free and did not contribute to the home. Mother had gone to rehab twice, once in 2014 and once in 2017. Maternal grandmother said that father was a drug user and petty thief who had hacked her bank account and stolen money.
The social worker also interviewed father's family. Paternal aunt did not know if father had a specific drug issue but said he had struggled with alcohol in the past. She was unaware if he had any current issue because she did not live near father. Father's mother similarly was unaware if father used drugs because she did not live near him, but she had no suspicions on that score. She initially said he did not drink at all, but then said, “ ‘He is not drinking as far as I know.' ”
Mother and father failed to show for a scheduled visit with B.K. and did not call to check on her. By the time the jurisdiction and disposition report was submitted in November 2020, mother and father had visited their daughter just once. Father failed to show for a total of four drug tests in October and November 2020.
The report also detailed father's criminal history. Father had a 2008 conviction for inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)), a 2009 conviction for disorderly conduct (Pen. Code, § 647, subd. (f)), and three 2012 DUI convictions (Veh. Code, § 23152, subd. (a)). Father was first convicted of a DUI in November 2012 after he fell asleep in a truck with the engine running in front of a gas station pump. A beer can was in a cup holder and a strong odor of alcohol emanated from the truck. Father's eyes were bloodshot and watery, his speech was slurred, and he was unsteady on his feet. Father said he had two beers two hours earlier. A week later, father was again arrested for a DUI. A month after that second DUI arrest, father was stopped for speeding and arrested for his third DUI.
IV. Last minute information
Mother denied the bulk of the assertions in the jurisdiction and disposition report. She continued to deny abusing methamphetamine and fentanyl, although she admitted to taking fentanyl a couple of times before discovering she was pregnant. Mother said she never told father that she had “used a little bit” before finding out she was pregnant, and he did not know she had used drugs. Mother further explained that the needles the social worker found in her room belonged to a former boyfriend who was diabetic.
Mother also denied she had ever been to rehab. As for maternal grandmother's characterization of father as a drug user, mother said that was untrue and arose from maternal grandmother's dislike of him and paranoia. While mother agreed that father had an acute alcohol problem years ago, she had never seen him drunk during their time together. Also, father had received treatment for his alcohol problem after his DUI convictions. Mother emphatically disagreed that father used drugs or marijuana, which she said he had not touched in seven years.
V. Jurisdiction and disposition hearing
At the jurisdiction and disposition hearing, the juvenile court sustained the petition as to mother. As to father, his counsel argued that the failure to protect allegation should not be sustained because there was little father could have done regarding mother's drug use during her pregnancy, as father had no “rights” to the unborn child. Counsel also argued that there was no evidence father used marijuana, and there was no nexus between such use and caring for the baby. Father submitted a drug test receipt dated October 6, 2020, although it is unclear what its results were.
The juvenile court found the issue of father's substance abuse to be “close” but tipped “so slightly in favor by a preponderance of the evidence.” The juvenile court noted that parents stayed together in the same small room where drug paraphernalia was found, mother admitted she used fentanyl and methamphetamine, and father admitted he ingested edible marijuana. Parents also minimized the severity of mother's drug use during her pregnancy. Further, father failed to appear for four drug tests. The juvenile court thus inferred that father was a no-show because he was currently using. And although his DUI convictions were old, the juvenile court noted their egregious nature, the evidence that he currently drank alcohol, and the absence of evidence he had ever been in a controlled substance program. The juvenile court therefore sustained the allegations that father failed to protect B.K. and that he had a history of substance abuse and currently abused marijuana, making him incapable of caring for B.K.
The juvenile court declared B.K. a dependent of the juvenile court, removed her from mother and father, and ordered family reunification services and monitored visits. Father was also ordered to comply with a drug and alcohol program with aftercare, random drug testing, and a 12-step program.
Father appealed.
DISCUSSION
I. Jurisdictional findings
Father contends that there was insufficient evidence he failed to protect B.K. in-utero and that he abused substances and currently abuses marijuana. After setting forth the standard of review, we explain why we disagree with father's contentions.
A. Standard of review
Section 300, subdivision (b), provides that a child is within the juvenile court's jurisdiction if 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 her parent to adequately supervise or protect the child. A challenge to the sufficiency of the evidence supporting jurisdictional findings and disposition orders under that section requires us to determine if substantial evidence, contradicted or not, supports them. (In re I.J. (2013) 56 Cal.4th 766, 773.) In making this determination, we draw all reasonable inferences from the evidence to support the juvenile court's findings and orders and review the record in the light most favorable to its determinations, while noting that issues of fact and credibility are in the juvenile court's province. (Ibid.) We do not reweigh the evidence or exercise independent judgment but merely determine if there are sufficient facts to support the juvenile court's findings. (Ibid.) We review the whole record in the light most favorable to the judgment to determine whether the record discloses substantial evidence such that a reasonable trier of fact could find the order appropriate. (Ibid.)
B. Sufficient evidence supports the failure to protect finding
Father contends that the failure to protect allegation should not have been sustained because his legal rights and obligations to B.K. in-utero were “negligible” and, in any event, there was insufficient evidence to show he violated any such negligible obligations. We disagree.
To support his assertion that no jurisdiction lies here, father cites In re Steven S. (1981) 126 Cal.App.3d 23. That case involved a juvenile court's assertion of jurisdiction over an unborn child. That is not the situation before us, as jurisdiction was not asserted over B.K. until she was born. Contrary to father's position, the law is clear that juvenile courts may assert jurisdiction over infants born prenatally exposed to dangerous drugs, thereby enabling courts to protect drug-exposed infants, to compel parents to undergo drug rehabilitation therapy, and to afford child protection services to the family. (In re Troy D. (1989) 215 Cal.App.3d 889, 898; In re Stephen W. (1990) 221 Cal.App.3d 629, 639-640 [mother's opiate use during pregnancy and infant's withdrawal symptoms at birth probative of risk of future neglect].) Evidence that a father failed to protect his child from in-utero drug exposure is an independent basis for jurisdiction over the child. (In re J.C. (2014) 233 Cal.App.4th 1, 6.) In In re J.C., the father argued that he had no way to protect his unborn child because he had separated from the mother during her pregnancy. However, before separating from her, they had a long-term relationship during which they used drugs together, including when she was five months pregnant. (Id. at p. 5.) From this, it was reasonable to infer that the father aided and encouraged the mother's drug use. As for the father's claim he could not protect his unborn child because he had separated from mother during most of the pregnancy, the court found that the separation did not preclude his inferential knowledge of her drug use during pregnancy. (Id. at p. 6.)
Here, father asserts that there was no evidence either that he used drugs with mother or aided and abetted her usage; hence, it cannot be shown he failed to protect B.K. However, the sufficiency of the evidence does not depend on father's direct and overt complicity in mother's drug use. He did not have to supply mother with needles and methamphetamine to be guilty of failing to protect his unborn child from mother's drug use. His knowledge of her drug use and failure to take steps to protect his unborn child can be enough to support jurisdiction. (See, e.g., In re J.C., supra, 233 Cal.App.4th at pp. 5-6.)
As to that, the evidence established that mother and father had lived together for three to four years. At the relevant times, they lived with maternal grandmother in an apartment and shared a bedroom. Even after B.K. was born, mother had drug paraphernalia (needles and a pipe) in the bedroom. The juvenile court was entitled to reject mother's explanation that the needles belonged to a diabetic ex-boyfriend. Further, given the close living quarters, the juvenile court reasonably could have believed that father saw the needles and pipe and was aware of mother's abuse of narcotics, especially given evidence that mother was a heavy user, e.g., her collapsed veins, her statements she used methamphetamine daily, and that B.K. suffered withdrawal symptoms. Indeed, father admitted that he knew that mother used fentanyl. His belief that she used it for pain does not negate that knowledge or the danger such a drug poses to a fetus.
To be sure, there was evidence father did not know the extent of mother's drug abuse: mother said she didn't tell him, and when the social worker told him about it, father appeared genuinely surprised. Still, even if the juvenile court believed that father did not know the full extent of mother's drug use-which, based on mother's own statements, could have been daily or one to two times a month-it reasonably could have believed he knew she was using methamphetamine sometimes. That knowledge, combined with his admitted knowledge she took fentanyl, was sufficient evidence to sustain the failure-to-protect allegation.
C. Sufficient evidence supports the substance abuse finding
Father next contends that there was insufficient evidence to support the allegation he had a history of substance abuse and currently abused marijuana. Again, we disagree.
It was undisputed that father had a history of alcohol abuse, significantly, three DUI convictions in 2012. The juvenile court aptly described them as egregious, as the first involved father passing out at the wheel and the next two were incurred in rapid succession. Father vaguely referred to therapy and to being forced to go to Alcoholics Anonymous, but there was no clear evidence he addressed his alcohol use. An unresolved substance abuse problem may compromise a parent's ability to care for a child, thereby justifying jurisdiction. (In re R.R. (2010) 187 Cal.App.4th 1264, 1284.) As to father's current substance use, father gave inconsistent statements about it. At the time of detention, father said he ate marijuana edibles and occasionally had a drink. He later told the social worker that he had not used marijuana for seven years.
The juvenile court characterized this evidence as “close.” In our view, had the foregoing evidence comprised the totality of evidence to support the substance abuse allegation, we might agree it was insufficient to sustain that allegation. (See, e.g., In re J.A. (2020) 47 Cal.App.5th 1036, 1046-1049 [mother's use of marijuana edibles during pregnancy insufficient evidence of substance abuse]; In re Destiny S. (2012) 210 Cal.App.4th 999, 1003 [marijuana use without more does not bring minor within dependency jurisdiction].)
But it was not the sole evidence. Rather, maternal grandmother, who lived with father, said he was a drug user. Although the juvenile court did not cite her statement as a ground for its finding, the statement nonetheless was a significant and compelling contribution to the evidence father abused drugs. Also compelling were father's four unexplained no- shows for drug tests. Absent an adequate explanation, a missed drug test may be considered to be the equivalent of a positive test result. (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384.) In addition to those no-shows, father (and mother) ignored the social worker's multiple attempts to contact them, prompting the social worker to go to the home unannounced. Such behavior could reflect a desire to avoid investigation into their drug use. (See, e.g., In re E.E. (2020) 49 Cal.App.5th 195, 217.) Indeed, that unannounced visit resulted in the discovery of needles and a pipe and maternal grandmother's damning interview.
Father, however, points out that jurisdiction requires (1) a parent's neglectful conduct or substance abuse in one of the specified forms, (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.) He thus asserts that there was no nexus between his substance abuse and a substantial risk of harm to B.K. However, as father acknowledges, a juvenile court need not wait for actual harm to occur before assuming jurisdiction. (In re I.J., supra, 56 Cal.4th at p. 773.) Where, as here, a child is of tender years, a substance abuse finding is prima facie evidence of the parent's inability to provide regular care, resulting in substantial risk of harm. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219.)
That principle is particularly apt here, where due to B.K.'s in-utero exposure to methamphetamine, she spent weeks in the hospital after her birth and has special needs. Paternal aunt had to be trained to care for B.K. And although B.K. was doing well in paternal aunt's care, B.K. still was sleeping at two-hour intervals, sneezing and yawning, and had a “ ‘little bit of shakes.' ” B.K. thus required even more care than infants usually require. And although B.K. was with paternal aunt in Barstow while father lived in the Los Angeles area, thereby posing potential visitation difficulties, father visited B.K. just once. He otherwise did not contact his sister to check on B.K. This apparent disinterest in his daughter's well-being is relevant to show he cannot provide the care she requires, thereby evidencing he poses a substantial risk of harm to her.
II. Removal order
Father's only argument as to why the removal order must be reversed is it was premised on the allegedly faulty jurisdictional findings. As we have found that substantial evidence supports those findings and father otherwise does not address the removal order, we reject father's contention that the removal order must be reversed.
DISPOSITION
The jurisdictional findings and dispositional order are affirmed.
We concur: LAVIN, J. KALRA, J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.