Opinion
B323362
11-06-2023
In re E.R. et al., Persons Coming Under the Juvenile Court Law. v. A.H., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Sarah Vesecky, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County, Super. Ct. No. 22LJJP00181 Donald A. Buddle, Judge.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Sarah Vesecky, Senior Deputy County Counsel, for Plaintiff and Respondent.
CURREY, P. J.
INTRODUCTION
In this appeal concerning dependency proceedings relating to 11-year-old E.R. and six-year-old N.R., A.H. (mother) contends the juvenile court erred by exercising jurisdiction over the children based on her alleged drug abuse and by removing the children from her custody.
The children have different alleged fathers. Neither is a party to this appeal.
The parties are familiar with the facts and procedural history of the case, so we do not fully restate those details here. Instead, in the Discussion, post, we discuss the facts as needed to provide context for and resolve the issues presented on appeal.
For the reasons discussed below, we reverse the challenged jurisdictional finding. We dismiss as moot the portion of the appeal relating to the removal order.
DISCUSSION
I. Justiciability
The Department of Children and Family Services (Department) contends mother's challenge to the jurisdictional finding relating to her substance abuse is moot because jurisdiction is proper based on an unchallenged finding. Anticipating this argument, mother addresses the issue in her opening brief. She contends her argument is not moot because the challenged finding has practical consequences for her, namely the removal order and related disposition order. As discussed post, the removal order is no longer of practical consequence to mother, as the children have since been returned to her care. Thus, the only consequence is the disposition order requiring her to comply with random or on-demand drug testing.
The juvenile court also found the children were at risk of harm due to mother's engagement in domestic violence with her male companion (count b-1). Mother, however, does not challenge count b-1.
"[W]here there are multiple findings against one parent; the validity of one finding may render moot the parent's attempt to challenge the others." (In re D.P. (2023) 14 Cal.5th 266, 284.) "'[T]he critical factor in considering whether [an] appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error.'" (Id. at p. 276.) Put another way-as our Supreme Court recently clarified-if "a parent has demonstrated a specific legal or practical consequence that would be avoided upon reversal" the challenge is not moot. (Id. at p. 283.) Here, if the challenged jurisdictional finding were reversed, we could provide mother with effective relief, i.e., she would not be subject to random or on-demand drug testing. We therefore conclude mother's jurisdictional challenge is not moot.
II. Jurisdictional Findings
The children came to the Department's attention after it received a referral alleging mother and her boyfriend engaged in domestic violence. During an interview with the Department on May 3, 2022, mother reported she had a prior arrest for possession of crystal methamphetamine and had last experimented with the drug in 2016. Mother agreed to submit to a drug and alcohol test the following day. The drug test was canceled because mother could not provide a urine sample. When asked about the test, mother stated she went into the testing facility three times but "could not pee."
Records obtained by the Department indicate mother was arrested for possession of a controlled substance for sale in 2019 and convicted in April 2020. She completed her probation for the crime in 2022.
At the adjudication hearing held in July 2022, the juvenile court found true the allegations asserted in the operative first amended petition filed on the children's behalf under Welfare and Institutions Code section 300. Relevant to this appeal, the court found mother placed the children at risk of physical and emotional harm because she "has a history of substance abuse" (count b-2) and ordered mother to participate in random and on-demand drug testing.
All subsequent undesignated statutory references are to the Welfare and Institutions Code.
A. Governing Principles
Section 300, subdivision (b)(1), allows a juvenile court to exercise jurisdiction over a child 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 . . . [¶] [t]he failure or inability of [his or her] parent . . . to adequately supervise or protect the child." Subdivision (b)(1) requires only that a parent has failed or is unable to adequately supervise or protect her child. The statute does not require negligent or culpable conduct by the parent. (In re R.T. (2017) 3 Cal.5th 622, 629-630 (R.T.).)
"The juvenile court need not wait until a child is seriously injured to assume jurisdiction if there is evidence that the child is at risk of future harm from the parent's . . . conduct." (In re Yolanda L. (2017) 7 Cal.App.5th 987, 993.) The court may consider past events as an indicator of whether the child faces a current risk of harm because "[a] parent's past conduct is a good predictor of future behavior." (In re T.V. (2013) 217 Cal.App.4th 126, 133.) A parent's denial of wrongdoing or failure to recognize the negative impact of her conduct is also relevant to determining risk under section 300. (In re A.F. (2016) 3 Cal.App.5th 283, 293.) Nevertheless, to show the child faces a risk of harm at the time of the jurisdiction hearing, there "must be some reason beyond mere speculation to believe the alleged conduct will recur." (In re James R. (2009) 176 Cal.App.4th 129, 136.)
The purpose of our dependency statutes "is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm....The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child." (§ 300.2, subd. (a).)
"The law is clear that jurisdiction must be based on substance abuse; mere substance use is not sufficient for jurisdiction." (In re J.A. (2020) 47 Cal.App.5th 1036, 1046, italics omitted.) Substance abuse involves a "'maladaptive pattern'" of behavior manifested by "'(1) recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household)[; ¶] (2) recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use)[; ¶] (3) recurrent substance- related legal problems (e.g., arrests for substance-related disorderly conduct)[; and ¶] (4) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights).' (DSM-IV-TR, at p. 199.)" (In re Drake M. (2012) 211 Cal.App.4th 754, 766, disapproved on another ground by In re D.P., supra, 14 Cal.5th at p. 283.) Although this "is not a comprehensive, exclusive definition" for substance abuse (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1218), where there is "a lack of evidence of life-impacting effects of drug use," there is insufficient evidence to "support a finding that a parent has a substance abuse problem justifying the intervention of the dependency court." (In re Rebecca C. (2014) 228 Cal.App.4th 720, 726.)
In the context of alleged substance abuse, a parent's drug use, without more, cannot support a finding of juvenile court jurisdiction. (See, e.g., In re Destiny S. (2012) 210 Cal.App.4th 999, 1003 ["It is undisputed that a parent's use of marijuana 'without more,' does not bring a minor within the jurisdiction of the dependency court. [Citation.] The same is true with respect to the use of hard drugs"].)
We review a juvenile court's jurisdiction finding for substantial evidence. (In re E.E. (2020) 49 Cal.App.5th 195, 206.) We will affirm the finding if it is supported by evidence that is reasonable, credible, and of solid value. (In re R.V. (2012) 208 Cal.App.4th 837, 843.) We review the record in the light most favorable to the court's findings and draw all reasonable inferences from the evidence in favor of those findings. (R.T., supra, 3 Cal.5th at p. 633.)
B. Analysis
Mother contends substantial evidence did not support a finding that she had a history of substance abuse, which rendered her incapable of caring for her children. Moreover, mother contends there was no nexus between her substance abuse and harm to the children.
Here, we acknowledge the record shows mother has had some substance abuse issues in the past. For example, mother was convicted of a drug-related crime in 2020. Additionally, a referral in November 2017 alleged mother was neglecting her children due to drug abuse. The referral was later determined to be unfounded after mother tested negative for drugs. In the underlying case, mother initially denied any prior or current substance abuse. During the same interview, however, she ultimately self-reported that she last used methamphetamine several years ago, in 2016. More recently, based on this information and the fact that mother had been convicted of possession of methamphetamine, the Department asked mother to take a drug test in May 2022. As noted above, mother subsequently failed to take the drug test, asserting she could not produce a urine sample. At the adjudication hearing, mother's attorney argued mother could not provide a urine sample because of a medical issue. Notwithstanding mother's proffered explanation, however, the juvenile court could reasonably infer mother did not provide a sample because she knew she would have tested positive. (See In re E.A. (2018) 24 Cal.App.5th 648, 657, fn. 6 ["Common sense suggests that a parent who consistently refuses to drug test without an adequate explanation does so because he or she knows the results will show substance abuse"].) Moreover, because mother did not take the drug test, she effectively missed the test. "[A] missed drug test, without adequate justification, is 'properly considered the equivalent of a positive test result.'" (See In re Kadence P. (2015) 241 Cal.App.4th 1376, 1385.)
Even though the evidence shows mother has used illicit substances in the past and, possibly, as recently as May 2022, a jurisdiction finding under section 300, subdivision (b)(1) "requires a showing of a risk of serious physical harm resulting from [a parent's] substance abuse." (In re Destiny S., supra, 210 Cal.App.4th at p. 1005.) No such evidence existed here. Despite mother's missed drug test, her drug-related conviction from over two years ago, and her past drug use seven years ago, the children were healthy and well-cared for. The record shows mother maintained an appropriate and stable home for the children; bonded well with the children; and appropriately cared for the children. E.R. initially denied anyone in the home used drugs and reported she had never seen anything related to drugs. Later, she reported she did not know what the word drugs meant. N.R. said mother did drugs but explained cigarettes are drugs. The Department ultimately determined N.R. did not understand what drugs were. Mother's boyfriend claimed she was not using drugs during the domestic violence incident that brought this family to the Department's attention. No drug paraphernalia was accessible to the children, and there is no indication that mother actively cared for the children while under the influence of illicit substances. Further, the Department became aware of mother's past substance use because mother reported it, not after observing anything concerning during the investigation of the case. In sum, mother's drug use alone does not support a finding of juvenile court jurisdiction. (See In re L.W. (2019) 32 Cal.App.5th 840, 849 ["drug use or substance abuse, without more, is an insufficient ground to assert jurisdiction in dependency proceedings under section 300"]; In re L.C. (2019) 38 Cal.App.5th 646, 654 [parent's "'use of methamphetamine, without more, cannot' support jurisdiction"].)
"'The basic question under section 300 is whether circumstances at the time of the [adjudication] hearing subject the minor to the defined risk of harm.'" (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) The circumstances here did not. The challenged jurisdictional finding accordingly cannot stand.
II. Removal
It is a court's duty, including in the dependency context, ""'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., supra, 14 Cal.5th at p. 276.) "Due to the dynamic nature of juvenile dependency proceedings, a subsequent order of the juvenile court may render an issue on appeal moot." (In re M.F. (2020) 74 Cal.App.5th 86, 110.)
In light of the children's return to mother's custody at the 12-month review hearing on May 5, 2023, the Department contends mother's challenge to the dispositional order removing the children from her is moot. Mother concedes her challenge to the removal order is moot.
DISPOSITION
The challenged jurisdictional finding is reversed. The challenge to the removal order is dismissed as moot.
WE CONCUR: COLLINS, J. ZUKIN, J.