Opinion
B311009
08-12-2022
In re K.K., a Person Coming Under the Juvenile Court Law. v. CHRISTOPHER M., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner and Respondent,
Paul Couenhoven, under appointment by the Court of Appeal, for Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel and Peter Ferrera, Deputy County Counsel for Respondent.
NOT TO BE PUBLISHED
APPEAL from order of the Superior Court of Los Angeles County. No. 20CCJP05774, Marguerite D. Downing, Judge. Affirmed.
Paul Couenhoven, under appointment by the Court of Appeal, for Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel and Peter Ferrera, Deputy County Counsel for Respondent.
HARUTUNIAN, J. [*]
INTRODUCTION
Christopher M. (Father), presumed father of minor K.K., appeals from the juvenile court's order removing K.K. from his and K.K.'s mother's custody. Father asserts two points of error. On the first point of error, he argues that removal was not supported by substantial evidence for two reasons. One reason is that it was impossible for the court to both (i) find Welfare and Institutions Code section 361, subdivision (c)(1)'s, predicate substantial danger to K.K. had been established, but (ii) allow unlimited visitation by Father and unlimited daytime visitation by Mother. The second reason is that respondent Los Angeles County Department of Children and Family Services (DCFS) failed to show it explored reasonable means to protect K.K. short of removal.
Mother, Larrissa K. (Mother, and together with Father, Parents), also filed a notice of appeal. However, she failed to prosecute her appeal and it was dismissed. Father's notice of appeal also indicates an appeal of the juvenile court's declaration of dependency and section 300 jurisdictional findings. However those matters are not addressed in Father's briefing and are therefore abandoned. (People v. Lemcke (2021) 11 Cal.5th 644, 654, fn. 3.)
Undesignated statutory references are to the Welfare and Institutions Code.
For the second point of error, Father argues that substantial evidence did not support court-ordered drug testing for Father where he had no criminal record and no history of substance abuse. We decline to consider the second point of error due to Father's failure to raise it to the trial court. As to the first point, we find that substantial evidence supports the trial court's order and therefore affirm.
Consistent with our whole-record review of the juvenile court's order (see In re I.R. (2021) 61 Cal.App.5th 510, 521), this background, and additional facts referenced elsewhere in this opinion, are drawn from the record presented to us in this appeal.
These proceedings commenced as a result of Mother testing positive for oxycodone at the time of K.K.'s birth and K.K. displaying withdrawal symptoms.
Before becoming pregnant, Mother was prescribed oxycodone to address back pain from an injury sustained in a childhood car accident and related surgeries. Mother worked as a caregiver prior to her pregnancy and she reports that her work was unaffected by her use of oxycodone. Father suffers from pain symptoms of his own, his relating to a neurological disorder, for which he has long been prescribed oxycodone. The disorder affects Father's ability to walk and requires him to use a walker or crutches. As a result, Father does not work and is on Social Security disability.
Parents learned of Mother's pregnancy in early February 2020. Father, who is not a doctor, researched the effects of prenatal oxycodone exposure. Based on his research, he concluded it was safer for Mother to stop taking the drug for the protection of the fetus. Mother's prescribing physician also advised Mother to stop taking oxycodone due to her pregnancy and refused to write her further prescriptions for the drug. With father's encouragement, Mother tapered off of the drug and she claimed to have completed the process in February 2020. Nevertheless, her former prescribing physician reported Mother was still seeking an oxycodone prescription in June of 2020.
Mother did not receive prenatal care. She did have one prenatal visit with an obstetrician late in her pregnancy but refused recommended care and cancelled a follow-up appointment. At the one visit she had, Mother did not advise the obstetrician of her oxycodone use during pregnancy, despite disclosing smoking (and that she had quit smoking after becoming pregnant).
Mother admits that, late in her pregnancy, she took some oxycodone. Although she claimed it was just one pill (or one pill at a time, the record is unclear), the neonatologist treating K.K. said that such a low dose was inconsistent with Mother's positive test and K.K.'s withdrawal symptoms.
Shortly after delivery, K.K. was given morphine to treat her withdrawal symptoms. She responded well to the treatment. When K.K. was almost ready for release from the hospital, DCFS requested that Parents sign a temporary safety plan that would require Mother's parents (Grandparents) to be with K.K. at all times, including while with the Parents. At the time, Parents lived with Grandparents. Parents declined to sign and DCFS obtained a warrant to remove K.K. from Parents. When presented with the warrant at Grandparents' home, Father initially questioned its validity and Parents refused to cooperate. After DCFS obtained law enforcement assistance, Parents agreed to cooperate and left Grandparents' home. K.K. remained there per placement by DCFS in the care and custody of Grandparents.
At the detention hearing, the juvenile court ordered K.K. detained from Parents but granted Parents monitored visitation, as much as allowed by Grandparents. The sole limitation on the amount of visitation was that, "at the end of the day, [Parents] need to leave and sleep somewhere else, and they may come anew again in the morning." The court further ordered drug testing for Parents and prohibited breastfeeding until Mother provided four clean tests.
Pursuant to this visitation authority, between the time of the detention hearing and disposition hearing, Father testified that Parents spent all day every day with K.K. but stayed at Mother's uncle's house in the evening. The record does not show that Parents have been anything but appropriate with and nurturing of K.K. while visiting her. However, Parents failed to drug test as required by the detention order and were not forthcoming with DCFS concerning significant issues, including limitations imposed by Father's medical condition and mother's drug use.
At the disposition hearing, the juvenile court ordered K.K. removed from Parents but permitted unlimited monitored daytime visitation for both Parents and for Father to have overnight stays at Grandparent's house, subject to Grandparents' consent. It declined to authorize overnight stays for Mother, but gave DCFS discretion to allow them. It further ordered drug testing and other services for Parents.
Father timely appealed.
DISCUSSION
A. Issues Subject to Review
Of Father's two issues raised on appeal, we consider only one. We decline to consider whether substantial evidence supports the juvenile court's order directing random drug testing of Father despite a lack of evidence that he had ever abused drugs. We so decline because Father failed to properly raise the issue before the juvenile court.
Ordinarily an argument not raised below is deemed forfeited on appeal. The rule of forfeiture applies in dependency cases. (In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.) The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the juvenile court so that they may be corrected. (Ibid.) The special considerations at play in dependency proceedings require that courts apply the forfeiture rule unless presented with "an important legal issue." (Ibid.)
DCFS suggests that Father also forfeited the argument (that the juvenile court erred) by failing to make the reasonable efforts findings required by section 361, subdivision (e). Father failed to separately include a heading in his brief for such an argument as required by California Rules of Court, rule 8.204(a)(1)(B), so it is unclear whether he actually intended that we consider the argument. But, to the extent that he did, his failure to request these findings of the juvenile court forfeited this argument as well.
Father's contention that drug testing was inappropriate due to his lack of substance abuse history was not raised to the trial court. As DCFS notes, he did not oppose drug testing generally; he asked only that the trial court "cap" the number of tests he had to undergo. And, his stated reasons for the capping request were only that a "reasonable number of tests" would be sufficient to demonstrate that Father was not taking illegal drugs and that participating in drug testing was a hardship. Moreover, Father had volunteered to undergo drug testing despite a lack of "evidence that suggests that he may have an issue with drugs." In his reply brief, Father did not indicate where in the record he raised the issue of a lack of history of drug abuse to the juvenile court to excuse drug testing. Nor did he otherwise address DCFS's forfeiture argument.
Father's challenge to his court-ordered drug testing based on lack of evidence of past illegal drug use, notwithstanding his offer to voluntarily drug test, does not raise an important legal issue. Thus, we do not excuse his failure to raise the issue below, and treat it as forfeited.
B. Standard of Review for Remaining Issue
" 'On appeal from a dispositional order removing a child from a parent we apply the substantial evidence standard of review, keeping in mind that the trial court was required to make its order based on the higher standard of clear and convincing evidence.' [Citations.] '" 'The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.'" '" (In re I.R., supra, 61 Cal.App.5th at pp. 520-521.) In conducting substantial evidence review, we review the evidence in the light most favorable to the juvenile court's findings and draw all inferences and resolve all evidentiary doubts in favor of those findings. (In re D.M. (2015) 242 Cal.App.4th 634, 640.)
C. Substantial Evidence Supports Removal
Removal of a child from his or her parents' physical custody is authorized under those circumstances specified in section 361, subdivision (c). As relevant here, removal is permitted only where there is clear and convincing evidence that (i) there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child if not removed; and (ii) there are no reasonable means by which the child's physical health can be protected without removal. (§ 361, subd. (c)(1); In re K.B. (2021) 59 Cal.App.5th 593, 605.)
1. Substantial Danger
Consistent with section 361's purpose of avoiding harm, a substantial danger finding does not require that the child has suffered actual harm. (In re K.B., supra, 59 Cal.App.5th at p. 605.) Danger that has not yet resulted in harm is danger nonetheless. Substantial evidence supports the trial court's determination that returning K.K. to Parents' custody would pose a substantial danger to her safety, protection, and physical and emotional wellbeing.
As an initial matter, K.K. did suffer actual harm. At birth, K.K. exhibited withdrawal symptoms due to Mother's use of oxycodone, which Mother's doctor had instructed her not to take due to potential risk to the fetus.
Just what conduct resulted in this harm has not been adequately explained by Parents. Despite claiming she had tapered off of oxycodone in February 2020, Mother sought a new prescription for the drug in March and again in June 2020. Father's statements about Mother's use are also inconsistent. He initially disclaimed any knowledge of her use after the tapering: "Anything beyond tapering, I didn't know about it." Then he claimed Mother notified him of her later use after the fact, but incongruously stated that he encouraged her to"' "take a pill." '" Mother admits to using oxycodone late in her pregnancy. However, her claims that she took just one pill are belied by the statement of K.K.'s neonatologist that Mother's positive drug test and K.K.'s symptoms were inconsistent with the limited admitted use.
Although Father is correct that K.K. is no longer at risk of prenatal exposure, "prenatal use of dangerous drugs by a mother is probative of future child neglect." (In re Troy D. (1989) 215 Cal.App.3d 889, 899-900.)
Other conduct during the pregnancy also supports a finding of risk to K.K. if entrusted to Parents' custody. Mother failed to notify the obstetrician of her use of oxycodone during her pregnancy. The juvenile court noted at the jurisdictional hearing that Mother had prioritized obtaining oxycodone over ensuring appropriate care for K.K. during pregnancy.
In the time between K.K.'s birth and the dispositional hearing, Parents did little to allay the concerns that brought K.K. to the attention of DCFS. Mother missed three drug tests and the only test she completed was diluted. Missed and diluted tests may be presumed positive. (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384, superseded by statute on other grounds as stated in In re A.M. (2020) 47 Cal.App.5th 303, 322 ["a missed drug test, without adequate justification, is 'properly considered the equivalent of a positive test result' "]; In re A.L. (2022) 73 Cal.App.5th 1131, 1145 [treating dilute test as presumed positive].) As of the February 1, 2021, last minute report (the last before the dispositional hearing), Mother had no undiluted negative tests.
It is unclear from the record whether one of these tests was excused. Mother's counsel stated at the hearing that "the L.M.I. indicates that there was a 12/16 missed drug test by mother that was a mistake," which DCFS's counsel agreed was excused. The last minute information dated February 1, 2021 shows that "[a]n On Demand was not submitted for mother on 12/16/2020 due to mother needing to test on 12/17/2020." The last minute information further shows that Mother then missed a test on December 17, 2020.
Mother's missed tests are of particular concern because of Parents' lack of forthrightness about her drug history and failure to acknowledge ongoing issues. In an interview with DCFS, mother stated that she had no history of drug use and that she only drank when she "was young. [She] was 15 years old." Five days later, she acknowledged using "meth" when she was 19 years old, resulting in an arrest for possession (around 2001), and being arrested for DUI after drinking when she was 22. When DCFS asked Father if he believed Mother abused oxycodone, he said he did not know. But Mother's treating physician believed she was addicted to oxycodone and noted that she "went to drug rehab before." Though the doctor did not say when Mother went to rehab, Parents had been together for approximately fifteen years and lived together for the past five.
New concerns also emerged concerning Father's ability to care for K.K. Father initially refused to provide information about his medical condition-a disability that prevents him from working-or whether he takes medication for it.
Father later acknowledged that he takes oxycodone for his condition. His doctor confirmed prescribing it but suggested that Father goes through his prescription more rapidly than indicated. At the detention hearing the juvenile court ordered drug testing for Father after he volunteered to submit to such testing. Father provided only one test pursuant to this order and missed the other three. Father's lone test was negative for drugs other than those legally prescribed to him. Nevertheless, as already noted, the juvenile court was entitled to draw adverse inferences from Father's missed tests in the absence of a satisfactory explanation. Father claimed that one missed test was a result of not knowing the testing facility's I.D. requirement-a requirement the record reflects was explained to him beforehand. No explanation is offered for the other missed tests.
At the dispositional hearing the court remarked that Father's positive test for oxycodone was "extremely high, given his dosage." We agree with Father that this statement is not supported by the record and disregard it. Father's treating physician "indicted he is unable to determine if the father's testing levels are consistent with the prescribed amount" and encouraged DCFS to consult with the toxicology technician for more information. The toxicology technician, in turn, "indicated father's current prescription is consistent with [the positive test]" and that "[t]here is no correlation to any therapeutic value due to a lot of factors coming into play, such as weight and water intake. The amounts vary. If there is concern for abuse, that would have to be consulted with the current physician." In a letter submitted to the court, Father's physician disclaimed any concern for abuse by Father of the drug prescribed to him by the physician.
The foregoing amounts to substantial evidence from which a trier of fact could reasonably conclude, to a high probability, that Parents were unable to provide adequate care and supervision to K.K. if returned to their custody. At the time of the dispositional hearing, K.K. was just four months old. Where Mother used narcotics against medical advice during pregnancy and was presumed to be using them after the pregnancy as part of a pattern of abuse, the juvenile court was entitled to find that returning K.K. to Mother's custody would constitute substantial danger. (Cf. In re Christopher R. (2014) 225 Cal.App.4th 1210, 1220 [finding of substance abuse by parent justified decision not to place infant with parent].) Likewise, based on Father's missed tests, the juvenile court was entitled to find that returning K.K. to Father's custody would constitute substantial danger.
We disagree with Father that the juvenile court's visitation authorization was incompatible with its finding that removal was justified by substantial danger of returning K.K. to Parents. Removal of a minor entails removing that minor from the physical custody of his or her parents or legal guardians. (§ 361, subd. (c)(1).) "Physical custody" is not defined in the Welfare and Institutions Code. To interpret terms and phrases in the Welfare and Institutions Code, other courts have looked to the Family Code. (See, e.g., In re Jeffrey M. (2006) 141 Cal.App.4th 1017, 1022 [looking to Family Code definition of "minor" to interpret term in Welfare and Institutions Code]; In re Austin P. (2004) 118 Cal.App.4th 1124, 1130 ["In determining what the Legislature meant [in § 361.2, subd. (a)] by 'custody,' 'placement,' and 'place,' we look to the Welfare and Institutions Code, the Family Code, the California Code of Regulations, and Black's Law Dictionary").
The Family Code defines "physical custody" as "the physical care and supervision of a child." (Fam. Code, § 3402, subd. (n).) In interpreting the meaning of "custody" under a different provision of the Welfare and Institutions Code, our sister court observed that statutory definitions of various forms of custody each describe "the right of a parent to have physical possession of and/or the right to make decisions about the child. Implicit in the definitions is that the parent has the right to exclude all others when making decisions pertaining to his or her child." (In re Austin P., supra, 118 Cal.App.4th at p. 1130.)
Even unlimited visitation is not the same thing as physical custody because a visiting parent lacks the control and decisionmaking authority of the person having physical custody of a minor. Thus, there may be scenarios where continued parental physical custody would present a substantial danger to a child, but unlimited parental visitation would not.
When the court ordered supervised and monitored visitation, it did not return K.K. to Parents' physical custody. Rather, it allowed K.K. to remain in Grandparents' physical custody but afforded Parents visitation supervised and monitored by Grandparents. As DCFS's counsel described at the dispositional hearing, the broad visitation rights the court granted were appropriate because "[Grandparents] are the one who are in charge of [K.K.]." This description of Grandparents' authority is apt. The juvenile court's condition that Grandparents supervise Parents' visitation with K.K. amounts to Grandparents' supervision of K.K. Parents do not have exclusive supervision of K.K. because they are prohibited from excluding Grandparents in supervising her. Grandparents are "in charge" and thus have custody of K.K.
There is nothing illogical about the juvenile court concluding removal was necessary in order to transfer physical custody away from Parents based on concerns raised by DCFS, but still allowing Parents extensive monitored and supervised visitation. Indeed, not only did the legislature recognize the possibility of extensive parental visitation following removal, but it also required it to the extent compatible with the child's interests. Having determined to remove K.K., the court was obligated to authorize visitation "as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A).)
We also disagree with Father that Savannah B. v. Superior Court (2000) 81 Cal.App.4th 158 (Savannah B.) compels reversal. There, the court rejected an order by which the minor was simultaneously removed from her mother's physical custody and then sent back to her mother's home for a" '60-day visit.'" (Id. at p. 159.) The court reasoned that authorizing such a "visit" was inconsistent with the findings necessary to justify removal and amounted to a disposition not authorized by the Welfare and Institutions Code. (Id. at p. 161.) It quoted In re Damonte A. (1997) 57 Cal.App.4th 894, 899 to explain that" '[t]he statutes contemplate that removal of the child from the physical custody of the parents will result in some other person or entity having physical custody of the child and that the child will be placed in an appropriate home other than that of the parent who had custody at the time the petition was filed.'" (Savannah B., supra, 81 Cal.App.4th at p. 162.)
The statutory scheme was respected here. Grandparents retained physical custody of K.K. in Grandparents' home which, at the time of the dispositional hearing, was no longer Parents' home. This disposition is authorized by the Welfare and Institutions Code (see § 361.2, subd. (e)(2)) and not inconsistent with removal.
2. No Reasonable Alternatives to Removal Substantial evidence also supports the trial court's conclusion that there were no reasonable means to protect K.K. short of removing her from Parents' physical custody. The jurisdiction/disposition report referred to the detention report, which contained a heading "REASONABLE EFFORTS AND/OR PRIOR INTERVENTION/SERVICES OFFERED." Under this heading, DCFS recites that "Reasonable Efforts were made to prevent or eliminate the need for child(ren)'s removal from the home," and goes on to explain that "DCFS attempted to put a safety plan in place, but parents refused to sign the safety plan."
Further details of the circumstances of Parents' refusal to sign are contained elsewhere in the report. Parents' attorneys had advised DCFS that Parents were agreeable to the proposed safety plan but Parents refused to sign. With no safety plan in place, DCFS obtained a warrant for removal. When serving the warrant, Parents refused to cooperate. The situation resolved only after DCFS involved law enforcement. Parents also refused to drug test. This information makes the reports here unlike the report in In re Ashly F. (2014) 225 Cal.App.4th 803, wherein the report merely recited, without more, that reasonable efforts to avoid removal had been made. (Id. at p. 808.)
As detailed above and in the last minute report, Parents' lack of cooperation continued through the date of the dispositional hearing. They missed drug tests, declined to provide information to DCFS, and provided information on key topics that was at times materially incomplete or inconsistent. Most importantly, Parents failed to meaningfully acknowledge Mother's substance abuse issues. A court is entitled to infer parents' past conduct will continue where they deny there is a problem. (In re K.B., supra, 59 Cal.App.5th at p. 604.)
When read in their entirety, the reports support the conclusion that reasonable efforts to prevent K.K.'s removal from Parents' custody were considered ineffective in light of Parents' consistent failure to cooperate with DCFS and address the issues that brought K.K. under the juvenile court's jurisdiction. By detailing Parent's failures to cooperate with DCFS and address the incident leading to K.K.'s removal, the reports were sufficient to support the court's finding that DCFS made reasonable efforts to prevent her removal from Parents' custody.
Further, as DCFS observes, Father's proposed "alternative" to removal is not an alternative but rather a "de facto removal." Father contends that the alternative the DCFS and the court failed to consider was "allowing [K.K.] to remain in [P]arents' custody as long as they continued to reside with [Grandparents] and [Grandparents] supervised." For the reasons already stated, the conditions that Parents and K.K. live in Grandparents' home and that Parents' time with K.K. be supervised and monitored by Grandparents would mean that K.K. was in Grandparents' physical custody, not Parents'. Again, Grandparents' mandatory supervision and monitoring would mean that Parents would lack authority to exclude Grandparents from supervision of K.K., which is incompatible with the concept of actual parental custody. (See In re Austin P., supra, 118 Cal.App.4th at p. 1130 [custody entails parental right to "exclude all others when making decisions pertaining to his or her child"].)
Father relies on Savannah B. to suggest that K.K. could hypothetically be returned to Parents' physical custody while still subject to round-the-clock supervision by Grandparents. He argues, "[s]ince the court believed [K.K.] would be safe if [Parents] spent the entire day with her and [she] spent the entire night in the same house as [F]ather, 'there was no substantial evidence to support the finding that [the child] would have been endangered by return to [the parents], as long as such return was supervised.'" (Quoting Savannah B., supra, 81 Cal.App.4th at p. 161; italics added.) We do not believe that the Savannah B. court's reference to "supervision" was to the kind of supervision and monitoring by Grandparents that Father proposes as compatible with true parental physical custody. Rather, given the context of the court's broader discussion, we believe it was referring to" 'a program of supervision as provided in section 301'" (ibid., quoting Cal. Rules of Court, rule 1456(a)), i.e. supervision by a social worker entailing "providing or arranging to contract for all appropriate child welfare services" in order to "attempt to ameliorate the situation" bringing the child within the juvenile court's jurisdiction. (§ 301, subd. (a).) In any event, no proposed supervision or program of supervision in lieu of removal was before the Savannah B. court. Savannah B. therefore cannot establish reasonable means of protection short of removal.
DISPOSITION
The juvenile court's order is affirmed.
We concur: STRATTON, P.J., WILEY, J.
[*] Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.