Opinion
B320978
09-21-2023
In re S.R., a Person Coming Under the Juvenile Court Law. v. B.B., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 22CCJP00133A Nancy Ramirez, Judge.
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Deputy County Counsel for Plaintiff and Respondent.
LAVIN, J.
INTRODUCTION
B.B. (mother) appeals from the court's disposition order declaring her infant son a dependent of the court. Mother argues insufficient evidence supports the court's jurisdiction findings that her mental health issues and substance abuse exposed her son to a serious risk of physical harm. Mother also challenges the court's disposition order removing her son from her custody. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has five children, including S.R., the subject of this dependency proceeding. Mother's four other children live out of state with their maternal grandmother, who was appointed to be the children's guardian due to mother's history of alcohol abuse and domestic violence. One of those children tested positive for marijuana at birth (in 2016), and he was later declared a dependent of the court as an infant due to mother's alcohol abuse. Mother had a sixth child who died from a heart condition as an infant.
S.R. was born in November 2021. A few days later, his meconium tested positive for marijuana, amphetamine, and methamphetamine. Shortly after he was born, S.R. was placed on a ventilator due to respiratory distress, and he was struggling to eat.
The Department of Children and Family Services (Department) interviewed mother in late November and early December 2021. She had been living in hotel rooms for several months, but she recently applied for housing assistance through the Veterans Administration (VA) and other programs. Mother suffers from post-traumatic stress disorder (PTSD), agoraphobia, and acute anxiety disorder. She wasn't taking medication to treat her mental health issues, but she recently underwent a mental health assessment through the VA.
Mother tested negative for drugs and alcohol after giving birth to S.R, and she denied using marijuana, amphetamine, or methamphetamine while pregnant with S.R. Mother claimed she may have been exposed to the drugs through "bad ventilation in her motel or [because] she was around someone" who used the drugs. Mother later denied associating with anyone who uses drugs and opined that she may have accidentally "reactivate[d]" drug "residue that could have been left on the surface areas" of her motel room because she is "constantly cleaning and spraying rubbing alcohol." Although mother abused alcohol and used marijuana in the past, she denied ever using methamphetamine.
S.R. was discharged from the hospital in early December 2021. A social worker visited mother and S.R. at the motel where they were living. Mother's motel room was clean and well-stocked with baby food and other items necessary for S.R.'s care. Mother reported that S.R. was suffering from a hernia, which his pediatrician instructed her to monitor.
In January 2022, the Department filed a petition under Welfare and Institutions Code section 300, subdivision (b) on S.R.'s behalf. The petition alleged: (1) S.R. tested positive for amphetamine, methamphetamine, and marijuana at birth, which exposed the child to a risk of serious physical harm (b-1 allegation); and (2) mother has a history of abusing alcohol and is a current abuser of methamphetamine and marijuana, which, due to S.R.'s young age and his need for constant care and supervision, exposed the child to a risk of serious physical harm (b-2 allegation).
All undesignated statutory references are to the Welfare and Institutions Code.
At the initial hearing on the petition, the court found the Department made a prima facie showing under section 300, subdivision (b). The court allowed S.R. to remain placed with mother so long as she, among other things, tested negative for drugs on a weekly basis, without any "dirty" tests or unexcused missed tests.
A social worker interviewed mother in late January 2022. S.R. appeared healthy and content in mother's care, and mother had scheduled a surgery to treat S.R.'s hernia for late March. Mother was working with a support group for disabled veterans. She also reported that she was seeing a psychiatrist and a psychologist and that she had been prescribed two medications to treat her PTSD-"Sertraline HCL and Prazosin HCL."
Mother missed her first on-demand drug test in late January 2022. Although the Department scheduled a make-up test, mother was turned away from the testing site because she did not have a valid identification card. Mother also missed her second on-demand drug test, claiming she could not report to the testing site because she and S.R. had contracted Methicillin-Resistant Staphylococcus Aureus. According to mother, her disabilities and health issues made it difficult to make it to her drug tests. Mother ignored the social worker's offer to transport her to testing sites.
In early February 2022, the Department provided mother bus passes so that she could travel to a testing site. Mother attended her third on-demand drug test and tested negative. Mother tested negative again about a week later.
On February 9, 2022, the court issued a warrant to remove S.R. from mother's custody. The next week, the court held a detention hearing under section 385. The court released S.R. to mother's custody on the condition that she comply with her court-ordered case plan issued at the initial petition hearing.
When the Department interviewed mother in mid-February 2022, S.R. appeared alert and comfortable in mother's care. Mother was responsive to S.R.'s needs, and she fed him regularly.
On February 25, 2022, mother tested negative. On March 1, 2022, she missed an on-demand test because she was tired. At a make-up test the next day, mother tested negative, and she tested negative again on March 10. On March 18, 2022, mother reported to a testing site, but she couldn't produce a test sample. Mother missed a drug test on March 22, 2022 because her family was visiting from out of state and she had forgotten to call the testing site.
In late March 2022, the Department received an anonymous referral alleging mother continued to associate with people who used "crystal meth." A few days before making the referral, the caller went to mother's motel room. Mother left the door open, and the caller saw aluminum foil in the bathroom. Mother was in and out of the motel room "all times of the day and night." The caller also reported that the motel room "smells of bleach[,] which burns the caller's eyes," and that S.R.'s "testicles are enlarged," indicating the child needs surgery to remove his hernia.
A social worker visited mother at her motel room and questioned her about the caller's referral. The social worker noticed a strong odor of rubbing alcohol emanating from mother's room and advised mother to use different cleaning products for S.R.'s safety. Mother denied the caller's allegations, claiming she did not interact with many people due to her anxiety and agoraphobia.
On March 31, 2022, a social worker spoke to mother's psychiatrist. Mother hadn't seen the psychiatrist since late December 2021, and she never met with a psychologist. When the social worker interviewed mother the next day, mother produced a bottle of Prazosin that was filled in early January 2022, but it didn't appear mother had taken any of the pills. Mother claimed she had recently finished a different bottle of the medication, but the bottle she produced stated that it was "1 of 1" bottles issued to her.
In early April 2022, S.R. was assessed by the Regional Center. His development was within "normal limits," and he demonstrated the skills of a child between three and four months old. Several days later, S.R. underwent surgery to treat his hernia. He was released from the hospital the next day.
On April 12, 2022, mother was excused from drug testing. She tested negative on April 15 and 21, 2022. On April 26, mother failed to drug test, claiming she needed to contact the police because she believed she was the victim of fraud. Mother took a make-up test the next day and tested negative.
In early May 2022, a social worker visited mother and S.R. at the motel where they were living. S.R. appeared comfortable, healthy, and happy in mother's care.
Mother reported she couldn't use her phone because she believed people at the motel had hacked into it using the motel's wireless internet system. According to mother, the hackers removed money from her bank accounts. The hackers also accessed mother's email account and "declined an apartment that [mother] had been offered" to "keep her close by and continue to hack into her cell phone." Mother believed the hackers broke into her motel room through the bathroom window because there was "white glue pigmentation lining the bottom of the window that had not been there previously." Mother also suspected the hackers took apart and reassembled S.R.'s stroller and an air purifier so they could place "trackers and bugs in her room." Motel staff reviewed surveillance footage and confirmed that no one broke into mother's room.
On May 6, 2022, mother missed an on-demand drug test. That same day, the court issued a warrant to remove S.R. from mother's custody. When a social worker tried to serve mother with the warrant, mother wasn't in her room. The motel's manager hadn't seen mother or S.R. for two days-since May 4- and mother's cell phone was deactivated. When the social worker returned to mother's motel room on May 9, 2022, mother and S.R. were still gone.
On May 10, 2022, a social worker located mother at a VA hospital in San Diego County and removed S.R. from her custody. Mother and S.R. arrived at the hospital the previous day, and they wandered around the building for a few hours. Mother was behaving erratically, claiming someone had followed her from Los Angeles. According to hospital staff, mother appeared to be under the influence of methamphetamine because" 'she had a really fast heartbeat'" and was behaving in a paranoid manner. Mother refused to provide the hospital staff a urine or blood sample. Mother was placed on a psychiatric hold because she appeared to be "gravely disabled."
On May 12, 2022, mother missed an on-demand drug test.
On May 13, 2022, the court held a detention hearing under section 385. The court detained S.R. from mother's custody and granted mother monitored visits with the child.
On May 18, 2022, a social worker drove mother to a testing site for an on-demand test, but mother left the site without testing.
On May 19, 2022, the Department filed a first amended petition. The b-1 allegation remained unchanged. As to the b-2 allegation, the Department added allegations that mother missed several on-demand drug tests without valid excuses and was observed by medical professionals to exhibit "signs of being under the influence of controlled substances while the child was in her care." The Department also added a b-3 allegation, which stated mother has a history of unresolved mental health issues and was involuntarily hospitalized while S.R. was in her care.
In late May 2022, the Department interviewed the children's maternal grandmother, who was concerned about mother's mental health. According to the grandmother, mother's behavior had changed recently. Mother was behaving differently than when she abused alcohol, and she often was paranoid, displayed "very high" levels of anxiety, and said things that did not make sense.
On May 27, 2022, the court held the jurisdiction and disposition hearing. The court sustained the b-1, b-2, and b-3 allegations asserted in the first amended petition. The court declared S.R. a dependent of the court, removed him from mother's custody, and awarded mother reunification services. As part of her case plan, the court ordered mother to participate in a full drug treatment program with aftercare and to submit to random, on-demand drug testing.
Mother appeals.
DISCUSSION
1. The Jurisdiction Findings
Mother contends the court's jurisdiction findings are not supported by the evidence. As we explain, substantial evidence supports the court's findings sustaining the b-1 and b-2 allegations, which are based on mother's issues with substance abuse and her use of marijuana and methamphetamine while pregnant with S.R. Because jurisdiction is proper on those grounds, we need not address whether the court erred in exercising jurisdiction over S.R. based on mother's unresolved mental health issues. (See In re M.W. (2015) 238 Cal.App.4th 1444, 1452 [a single jurisdiction finding is sufficient to maintain dependency jurisdiction over a child].)
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." (§ 300, subd. (b)(1).) 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 (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. [Citation.]" (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 (A.F.).) 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. [Citation.]" (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).) That is especially true for children under six years old, or children of "tender years," where a finding of "substance abuse is prima facie evidence of the inability of a parent or guardian to provide regular care resulting in a substantial risk of physical harm." (In re Drake M. (2012) 211 Cal.App.4th 754, 767, disapproved on another ground in In re D.P. (2023) 14 Cal.5th 266, 283.)
We review a juvenile court's jurisdiction finding for substantial evidence. (In re E.E. (2020) 49 Cal.App.5th 195, 206 (E.E.).) 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 (R.V.).) 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.)
The record contains ample evidence that mother has a substance abuse problem. She abused alcohol for more than a decade, and her use of alcohol and marijuana has affected S.R.'s surviving siblings. For instance, one of S.R.'s older siblings tested positive for marijuana at birth and was later declared a dependent due to mother's alcohol abuse. And, according to mother, the maternal grandmother was granted legal guardianship over all of S.R.'s surviving siblings due to mother's issues with alcohol abuse. Mother also used drugs while she was pregnant with S.R., as he tested positive for marijuana and methamphetamine at birth.
There also was evidence from which the court could infer mother continued to use methamphetamine during the Department's investigation, while S.R. was still in her care. When mother took S.R. to the VA hospital in early May 2022, the hospital staff believed mother was under the influence of methamphetamine because she was acting in a paranoid manner and her heartrate was elevated. When asked to drug test, mother refused to provide the staff a sample of her urine or blood. Based on the hospital staff's description of mother's demeanor and mother's refusal to drug test, the court reasonably could find mother was under the influence of methamphetamine while S.R. was in her care.
Mother argues there is a "common sense" explanation for why she had an elevated heart rate and was acting paranoid at the VA hospital. When she arrived at the hospital, she had just left Los Angeles because she believed she was the victim of theft. According to mother, it is reasonable for someone who believes they were the victim of a crime to exhibit such signs of distress. Mother misconstrues the substantial evidence standard of review. In reviewing the sufficiency of the evidence to support a jurisdiction finding, we do not resolve conflicts in the evidence or determine the weight of the evidence. (R.V., supra, 208 Cal.App.4th at p. 843.) Rather, we must affirm the court's findings so long as they are supported by substantial evidence, and we may not reverse "even if there is other evidence supporting a contrary finding." (Ibid.)
In any event, the court's finding that mother was under the influence of methamphetamine at the VA hospital is supported by the fact that she missed numerous drug tests throughout the Department's investigation. Shortly after the Department filed S.R.'s petition, the court ordered mother to submit to random on-demand tests. Although mother tested negative each time she submitted a sample, she missed 10 tests in less than a fourmonth period. To be sure, mother was excused from some of those tests, but she was not excused from many others that she missed. Most importantly, mother missed the final three tests leading up to the jurisdiction hearing, all of which were scheduled within nearly a week of when she appeared to be under the influence of methamphetamine at the VA hospital. And, for the latest of those tests, a social worker drove mother to the testing site, but she still failed to test. Considering mother's numerous missed drug tests, many of which occurred shortly before or after she appeared to be under the influence of methamphetamine at the VA hospital, it was more than reasonable for the court to find mother continued to use methamphetamine throughout this case. (See In re Kadence P. (2015) 241 Cal.App.4th 1376, 1385 (Kadence P.) [a missed drug test, without adequate justification, is" 'properly considered the equivalent of a positive test result' "].)
Citing evidence that S.R. remained in good health and appeared happy and content in her care, mother argues the Department failed to establish any drug use on her part placed the child at a substantial risk of serious physical harm. We reject this argument because there was sufficient evidence from which the court reasonably could have found mother's substance abuse issues endangered S.R.'s physical safety.
Because S.R. is an infant, mother's issues with substance abuse, including her use of marijuana and methamphetamine while pregnant with S.R. and her continued use of methamphetamine throughout this case, constitute prima facie evidence of her inability to provide regular care for the child. (Kadence P., supra, 241 Cal.App.4th at p. 1385 [a finding of substance abuse by a parent whose child is under six years old is prima facie evidence of inability to provide regular care resulting in a substantial risk of harm].) Mother's conduct in this case also exposed the child to an acute risk of harm. It goes without saying that travelling alone with an infant child while under the influence of methamphetamine endangers the child's safety, as mother could have lost S.R. or injured him. And mother's continued denial about her ongoing substance abuse issues further supports a finding that S.R. faces a current risk of harm. (E.E., supra, 49 Cal.App.5th at p. 213 [mother's dishonesty about the extent of her drug use supports finding that her substance abuse issues placed her children at a current risk of harm]; see also A.F., supra, 3 Cal.App.5th at p. 293 [a parent's denial of wrongdoing is relevant in determining whether the conduct that brought her child to the court's attention is likely to recur in the future].)
2. The Removal Order
Mother next contends the court erred when it removed S.R. from her custody at the disposition hearing. We disagree.
Mother's request for judicial notice of the November 30, 2022 minute order from a subsequent hearing is denied. That order is not the subject of this appeal.
To remove a child from a parent's custody at the disposition hearing, the court must find by clear and convincing evidence that returning the child to his parent's home creates a substantial danger to the child's physical safety or physical or emotional well-being, and that there are no reasonable means to protect the child's health short of removal. (§ 361, subd. (c)(1).)
A parent does not need to be dangerous and the child does not need to have been harmed before removal is appropriate. (In re D.B. (2018) 26 Cal.App.5th 320, 328.) The purpose of the dependency statutes is to avoid harm to the child. (Ibid.) The parent's past conduct and current circumstances are relevant in determining whether removal is appropriate. (Id. at p. 332.)
We review the court's removal order for substantial evidence. (E.E., supra, 49 Cal.App.5th at p. 206.) Due to the heightened clear and convincing evidence standard of proof, we must determine whether "the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.) We "must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Id. at pp. 1011-1012.)
For largely the same reasons we just discussed, the court's decision to remove S.R. from mother's custody is supported by substantial evidence. Although mother acknowledges she's had issues abusing alcohol in the past, she remains in complete denial about her ongoing issues with abusing methamphetamine that gave rise to S.R.'s dependency proceedings. Due to S.R.'s young age, mother's use of methamphetamine and marijuana while pregnant with the child, her continued use of methamphetamine throughout this case while the child was in her care, and her erratic behavior, it was more than reasonable for the court find S.R. faced a substantial risk of physical harm should he remain in mother's custody.
DISPOSITION
The juvenile court's jurisdiction findings and disposition orders are affirmed.
WE CONCUR: EDMON, P. J., ADAMS, J.