Opinion
B320974
01-19-2024
In re M.R., a Person Coming Under the Juvenile Court Law. v. F.R., Defendant and Appellant. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,
Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 22CCJP00891A Stephen C. Marpet, Judge Pro Tempore. Affirmed.
Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
MORI, J.
Mother, F.R., challenges the juvenile court's jurisdictional findings and disposition order involving her daughter, M.R. The court exercised jurisdiction over M.R. under Welfare and Institutions Code section 300, subdivision (b), based on findings relating to mother's and nonparty father's substance abuse. The court removed M.R. from the parents' custody. We conclude the court's orders are supported by substantial evidence and affirm.
All subsequent undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention
In early February 2022, the Department received a referral alleging mother left M.R., approximately two months old, alone while mother went to father's house to do drugs with him. The social worker went to M.R.'s maternal grandmother's home, where mother and M.R. were staying. Maternal grandmother confirmed M.R. was in the home, but she did not know where mother was. Maternal grandmother indicated mother "does come in and out of the home" but denied M.R. was left alone. The social worker obtained father's address from maternal grandmother and went to interview him.
M.R.'s paternal grandmother was at the property when the social worker arrived. Paternal grandmother explained she allowed father to sleep outside her home in the patio area. Paternal grandmother picked up a piece of foil paper and stated father used it to consume methamphetamine and fentanyl. She informed the social worker she did not let father in the home due to father's drug use. She reported she also observed mother consume drugs, including while pregnant, with father outside the home. She indicated mother and father were using drugs on a daily basis. Paternal grandmother further stated mother once brought M.R. with her, and paternal grandmother observed mother "dosing off" while M.R. was in her care after taking a substance.
The social worker returned to maternal grandmother's home to speak with mother. Mother denied the claims she and father used drugs. The next day, mother submitted to a drug test and tested negative.
About two weeks later, the social worker interviewed father with paternal grandmother present. Concerning the allegations, father stated he consumed "'pills and weed.'" When asked if mother was using any substances, father responded, "'I shouldn't have to explain myself'" because the social worker had already spoken to mother. Father, however, admitted mother had taken Percocet "'a while ago, in January.'" The social worker then asked father about the foil paper outside the home, and father replied he used it to consume pills.
In a follow-up interview in late February, the social worker revisited father to discuss a positive test for methamphetamine. Father said he consumed methamphetamine while he was staying with M.R.'s paternal grandfather "in the [riverbed]." Father claimed that other people were trying to kill paternal grandfather, so he and paternal grandfather consumed methamphetamine in order to stay up and take turns looking out for one another.
The social worker asked father what his and mother's plans for the future were, and father stated mother wanted to enter rehab with father to "get clean too." When asked if mother consumed methamphetamine, father responded, "'[J]ust the pills.'" Father again indicated mother had consumed Percocet in January.
Later that same day, the social worker spoke to father and mother together in the patio area of paternal grandmother's home. Mother told the social worker her plan was to enter a rehabilitation facility due to the accusations against her. Mother claimed she last used Xanax in January 2021 and denied using Percocet in January 2022. Mother denied abusing any drug. The parents were allegedly unable to enroll into a rehabilitation program because the program did not allow couples to enroll together. The social worker later called father to speak to mother, but father did not know where mother was.
In early March 2022, the social worker made an unannounced visit to paternal grandmother's home. When the social worker walked into the patio area, the social worker observed mother tell father she was going to hide and go behind the home. The social worker saw dirty dishes and a mattress on the floor. Mother confirmed she stayed over and slept outside. Mother and father each took a drug and alcohol test that day and tested negative. Mother reported she went to a rehabilitation facility but was not allowed to stay due to testing negative. She claimed she still intended to enroll in a few days. About a week later, M.R. was removed from mother's custody and placed with a paternal uncle.
The Department then filed a section 300 petition on M.R.'s behalf. The petition alleged M.R. was at risk of serious physical harm due to mother's substance abuse (count b-1) and father's substance abuse and mother's failure to protect (count b-2). At the detention hearing, the juvenile court found a prima facie case for detaining M.R.
B. Jurisdiction and Disposition
The jurisdiction and disposition report noted that on March 18, 2022, father spoke with the social worker and reported that he and mother were abusing Percocet "to this day." Father stated he and mother consumed Percocet daily three to four times a day in pill form and that mother became physically aggressive towards him when they ran out. He said he and mother were currently homeless and living on "the riverbed." Father denied mother was abusing methamphetamine, but he stated the parents bought Percocet he believed was laced with methamphetamine. Further, father reported that mother had M.R. with her on an occasion she was under the influence of drugs. During the interview, father had slurred and slow speech. He admitted to taking Percocet the night before. The social worker confirmed an in-person interview with father for the following month, which father failed to attend.
Also on March 18, 2022, paternal grandmother reported mother and father were currently abusing Percocet, which paternal grandmother saw the parents do at her home. One month later, paternal grandmother informed the social worker that since M.R. was removed from the parents' care, mother and father increased their substance consumption. Mother would allegedly show up to paternal grandmother's home demanding access because she believed father was storing his drugs inside. Paternal grandmother claimed mother threatened her, broke into her home, and stole items. She said the parents stole to afford the substances they abused.
The social worker was unable to interview mother for the jurisdiction and disposition report. Mother did not respond to the social worker's calls or text messages and did not appear for an in-person interview she previously confirmed for April 2022. The Department noted mother's whereabouts were unknown. A medical report attached to the report indicated that both mother's and M.R.'s toxicology screens at M.R.'s birth were negative. Additionally, an attached police report dated March 2021 stated a police officer found mother in possession of 30 pills she claimed were Xanax.
Thereafter, on April 21, 2022, M.R.'s maternal aunt called the social worker, who said mother was at a local park and available to speak through the phone. Mother agreed to meet with the social worker and drug test the next day. The social worker waited for two hours, but mother did not arrive or contact the social worker. The social worker contacted the maternal aunt, but she did not know where mother was.
In a last-minute information report, it was noted mother eventually met with the social worker on May 20, 2022. Mother notified the social worker she had left an inpatient rehabilitation center because her Medi-Cal expired. Mother also said she did not want visits with M.R. but did not provide a reason why. Since the dependency action began, mother had not had any visits. That same day, the social worker contacted father but was unable to speak to him because he had smoked Percocet with fentanyl.
At the adjudication and disposition hearing, the juvenile court sustained the petition as pled. Regarding disposition, mother objected to removal and argued the Department did not meet its burden of showing M.R. should be removed from mother's custody The court, however, found by clear and convincing evidence there was a substantial danger to M.R.'s physical and mental well-being, and there were no reasonable means to protect M.R. without removal. The court removed M.R. from the parents' custody and ordered they be provided with family reunification services.
After mother filed this appeal, the juvenile court entered orders terminating the parents' reunification services and their parental rights. Mother has appealed from the order terminating parental rights. We have granted her request to take judicial notice of these post-appeal orders and her notice of appeal.
DISCUSSION
A. Jurisdiction
1. Legal Principles
The purpose of California's dependency law 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." (§ 300.2, subd. (a).) Pursuant to section 300, subdivision (b)(1), a juvenile court may exercise jurisdiction over a child if it finds that "[t]he 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 or guardian to adequately supervise or protect the child, . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's . . . substance abuse." (§ 300, subd. (b)(1).)
"A jurisdiction finding under section 300, subdivision (b)(1), requires the Department to prove three elements: (1) the parent's or guardian's neglectful conduct or failure or inability to protect the child; (2) causation; and (3) serious physical harm or illness or a substantial risk of serious physical harm or illness." (In re Cole L. (2021) 70 Cal.App.5th 591, 601.) "Although section 300 requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citations], the 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 pp. 601-602.) The court may consider past events in determining whether a child presently requires the court's protection, and parents' past conduct may be probative of current conditions if there is reason to believe it will continue. (Id. at p. 602; see also In re T.V. (2013) 217 Cal.App.4th 126, 133 ["[a] parent's past conduct is a good predictor of future behavior"].)
"'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.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] '"[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]."' [Citation.]" [Citation.]'" (In re I.J. (2013) 56 Cal.4th 766, 773.)
"Substantial evidence must be of ponderable legal significance. It is not synonymous with 'any' evidence. [Citation.] The evidence must be reasonable in nature, credible, and of solid value." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order." (Ibid.)
2. Substantial Evidence Supported the Allegation that Mother Abused Percocet and Posed a Risk of Harm to M.R.
Mother challenges the juvenile court's finding of jurisdiction over M.R. on each of the grounds in the sustained petition under section 300, subdivision (b): mother's substance abuse (count b-1) and father's substance abuse and mother's failure to protect (count b-2). With respect to count b-1, mother argues there was no substantial evidence of substance abuse by her or a resulting risk of harm to M.R. We disagree.
Because we find there was substantial evidence to support the jurisdictional finding as to count b-1, we need not address mother's contentions regarding count b-2. "'When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.'" (In re I.J., supra, 56 Cal.4th at p. 773.)
"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.) Section 300, subdivision (b), "allows for dependency jurisdiction based on substance abuse only when this abuse leads to an 'inability' on the part of a parent or guardian 'to provide regular care for [a] child' (§ 300(b)(1)(D)) that causes the child to suffer, or creates 'a substantial risk that the child will suffer, serious physical harm or illness.'" (In re N.R. (2023) 15 Cal.5th 520, 540 (N.R.).)
Here, mother contends there is no substantial evidence of substance abuse because she had a negative toxicology screen at M.R.'s birth and tested negative for substances in February and March 2022. In making this argument, mother asserts we should discredit contrary evidence regarding her substance abuse and, in essence, reweigh the evidence in her favor.
The negative test results were not the sole evidence available for the juvenile court to consider. The record shows mother admitted to previously taking Xanax, and a police report from March 2021 indicated mother was found to have 30 Xanax pills on her person. Furthermore, father reported he and mother were abusing Percocet throughout 2022. After mother's second negative drug test, father stated he and mother abused Percocet daily three to four times per day. Mother would become physically aggressive towards him when they ran out of pills.
Mother is not contesting that father tested positive for and admitted to consuming methamphetamine.
M.R.'s paternal grandmother also indicated mother was abusing Percocet, which paternal grandmother witnessed mother do at her home. Mother reportedly increased her substance consumption after M.R. was removed from her care. Paternal grandmother further added that mother would show up unannounced to her home acting aggressively and demanding access because mother believed father was storing drugs there.
Mother argues father's and paternal grandmother's statements are not credible and her account of events should be accepted as consistent with the drug tests she took. However, mother's contention disregards the applicable standard of review. When analyzing the sufficiency of the evidence supporting a jurisdictional finding, we analyze the evidence in the light most favorable to the juvenile court's finding and uphold the finding "'if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.'" (In re Madison S. (2017) 15 Cal.App.5th 308, 318; see also In re I.J., supra, 56 Cal.4th at p. 773.) As the reviewing court, "[w]e do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts." (In re Dakota H., supra, 132 Cal.App.4th at p. 228.)
To the extent mother argues we should not defer to the juvenile court's assessment of father's credibility because his statements were contained in a report, mother cites no authority mandating that we reassess his statements. In juvenile court, statements contained in the report of a social worker are "admissible to assist the court in its determinations." (In re Lesly G. (2008) 162 Cal.App.4th 904, 914.) Further, mother is not persuasive in arguing that father was not credible because he was apparently on drugs when he stated that he and mother abused Percocet daily. The juvenile court could have found father's appearance of being under the influence of drugs corroborative of his statement.
Moreover, contrary to mother's argument, the negative drugs tests she references are not conclusive proof there was no substance abuse in this case. After M.R. was detained and it was reported mother's substance abuse worsened, mother agreed but failed to appear for a scheduled drug test in April 2022 without explanation. "[A] missed drug test, without adequate justification, is 'properly considered the equivalent of a positive test result.'" (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1385, disapproved on other grounds in N.R., supra, 15 Cal.5th at p. 560, fn. 18; see also In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217 [missed drug test following children's detention was properly considered the equivalent of a positive test result], disapproved on other grounds in N.R., supra, 15 Cal.5th at p. 560, fn. 18.)
Mother's contention that her missed drug test should not be considered a positive test because the juvenile court had not yet asserted jurisdiction over M.R. is not persuasive. Mother admitted to prior drug use with father, and paternal grandmother and father both reported that he and mother were seriously abusing Percocet. Mother then missed the scheduled drug test. The juvenile court could reasonably infer under the circumstances that mother did not appear for the drug test because she knew she would test positive.
In addition to failing to appear for her scheduled drug test, mother did not cooperate with the Department. Her whereabouts were unknown to the Department throughout its investigation. She did not respond to the social worker's phone calls or text messages and did not arrive for an in-person interview to which she had agreed. Such behavior could reflect a desire to avoid investigation into her drug use. (See e.g., In re E.E. (2020) 49 Cal.App.5th 195, 217 [parents' resistant behavior reflected a desire to avoid investigation into the extent of their drug use].) Given the evidence of mother's substance abuse, her unexcused missed test, and her failure to cooperate, it was reasonable for the juvenile court to conclude mother was not being truthful and was attempting to conceal her substance abuse. (See In re K.B. (2021) 59 Cal.App.5th 593, 601 ["The juvenile court was entitled to conclude the mother had been transparently dissembling about her drug use. A reasonable inference was the mother was trying to hide her ongoing addiction"], disapproved on other grounds by N.R., supra, 15 Cal.5th at p. 560, fn. 18.) Accordingly, there was substantial evidence mother abused substances, and it prevented her from providing regular care to M.R.
3. Mother's Substance Abuse Created a Serious Risk of Harm
Section 300, subdivision (b)(1), also "requires a showing of a risk of serious physical harm resulting from [a parent's] substance abuse." (In re Destiny S. (2012) 210 Cal.App.4th 999, 1005.) We find there was sufficient evidence from which the juvenile court reasonably could have found mother's substance abuse put M.R. at substantial risk of physical harm.
Mother would leave maternal grandmother's home for days at a time without maternal relatives knowing her whereabouts. The social worker found mother and father together during an unannounced visit to paternal grandmother's home, where mother confirmed she was staying over and sleeping outside on a mattress on the patio. Father later disclosed he and mother were living together on "the riverbed" where they obtained Percocet he believed had been laced with methamphetamine. Although mother asserts that M.R. was safe in maternal grandmother's care, there was evidence that mother took M.R. to paternal grandmother's home, where the parents did drugs together, which could have resulted in the infant child being injured. Paternal grandmother stated she observed mother consuming substances while caring for M.R. And father disclosed mother previously had M.R. with her while she was under the influence of drugs at paternal grandmother's home. It was reported multiples times that mother was abusing Percocet daily with father.
This evidence supports the juvenile court's finding that mother's substance abuse endangered M.R.'s health and safety. (In re Christopher R., supra, 225 Cal.App.4th at p. 1217.) Indeed, M.R. was approximately two months old and required constant care and supervision. (N.R., supra, 15 Cal.5th at p. 559 ["a child's youth and maturity level can bear upon the care that the child may require and whether a parent's . . . substance abuse places the child at substantial risk of serious physical harm"].) The juvenile court did not need to wait for actual harm to occur before asserting jurisdiction to protect M.R. from a parent whose drug abuse created a serious risk of physical harm. (In re K.B., supra, 59 Cal.App.5th at p. 603 ["The court need not wait for disaster to strike before asserting jurisdiction. [Citation.] This is why the statute uses the word 'risk'"].)
Furthermore, the record reflects that, at the time of the adjudication hearing, mother continued denying she had any substance abuse issues. Mother's failure to acknowledge any issues further supports the juvenile court's finding mother's substance abuse created a substantial risk of harm to M.R. (See In re E.E., supra, 49 Cal.App.5th at p. 213 [a parent's refusal to acknowledge responsibility for the conduct giving rise to the dependency proceedings supports finding that children face a current risk of harm]; see also In re T.V., supra, 217 Cal.App.4th at p. 133 ["[a] parent's past conduct is a good predictor of future behavior"].)
B. Disposition
1. Governing Law
Pursuant to section 361, subdivision (c)(1), the juvenile court may remove a child from the custody of a parent if it finds, by clear and convincing evidence, "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being 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." "A juvenile court's removal order at a disposition hearing will be affirmed on appeal if it is supported by substantial evidence." (In re V.L. (2020) 54 Cal.App.5th 147, 154.)
"When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is 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. In conducting its review, the court 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." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012 (O.B.).)
"The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child." (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)
2. Substantial Evidence Supported the Disposition Order
Mother argues the order removing M.R. from her care was improper because the Department failed to prove, by clear and convincing evidence, that M.R. was in substantial danger in her care. We disagree.
Mother has appealed the order terminating parental rights, and she contends this issue is not moot because the removal order led to termination of her parental rights. The Department does not dispute mother's claim. Where an order "terminating parental rights is challenged on appeal, an earlier appeal arising out of a juvenile court dependency proceeding is not moot if the purported error is of such magnitude as to infect the outcome of the ensuing termination action . . ." (In re Kristin B. (1986) 187 Cal.App.3d 596, 605; see also In re Cristian I. (2014) 224 Cal.App.4th 1088, 1096, fn. 6 [appeal was not moot, despite termination of juvenile court jurisdiction, because the dispositional order continued to adversely affect parent].) Because mother asserts the removal order impacted the order terminating parental rights, we review mother's challenge to the removal order.
The same evidence that supports the jurisdiction findings also supports the removal order. As noted above, there was substantial evidence that mother was abusing Percocet with father, including when mother was seen "dosing off' while M.R. was in her care. Although mother argues there was no evidence M.R. ever suffered physical harm, a juvenile court "need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child." (In re N.M. (2011) 197 Cal.App.4th 159, 165.) Due to M.R.'s young age and mother's substance abuse issues, a reasonable fact finder could determine that returning M.R. to mother would create a substantial danger to her physical well-being. (O.B., supra, 9 Cal.5th at p. 1011.)
3. Mother Forfeited Her Arguments Regarding Alternatives to Removal
Mother asserts there were reasonable alternatives to removal. She also contends that because the Department failed to comply with California Rules of Court, rule 5.690, by not discussing reasonable efforts to prevent removal in its jurisdiction and disposition report, it failed to supply clear and convincing evidence there were no alternatives to removal. However, as the Department contends, mother did not argue that the Department failed to pursue reasonable alternatives to removal in the juvenile court, nor did she object that the Department's report omitted a discussion of efforts to prevent removal.
Where the Department recommends removal, California Rules of Court, rule 5.690, subdivision (a)(1)(B)(i), requires the Department to prepare a social study of the child that includes "[a] discussion of the reasonable efforts made to prevent or eliminate removal ....'
"Many dependency cases have held that a parent's failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court." (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338.) "As some of these courts have noted, any other rule would permit a party to . . . deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable." (Id. at p. 1339.) "Appellate courts have applied the waiver doctrine in dependency proceedings in a wide variety of contexts, including cases involving failures to obtain various reports required by statute." (In re Dakota S. (2000) 85 Cal.App.4th 494, 502 [failure to request assessment of prospective guardian under § 366.22, subd. (b)]; see also In re Amos L. (1981) 124 Cal.App.3d 1031, 1038 [failure to object to inadequacy of social study forfeited right to raise issue on appeal].)
Mother does not deny that she did not raise any arguments regarding alternatives to removal, or that she failed to object to the Department's alleged failure to discuss reasonable efforts to prevent M.R.'s removal in its reports. Because she has not raised these issues for the juvenile court, mother has forfeited these arguments.
Mother does not deny that she stopped responding to the Department's efforts to contact her, impeding the discussion of alternatives to removal and close supervision of mother by the Department. During the Department's investigation, neither it nor maternal relatives knew with regularity where mother was living or staying. Further, a few days before the adjudication hearing, mother told the Department, she did not wish to have visits with M.R. To the extent that mother argues that an alternative to removal would have been to place the child with maternal grandmother, she concedes removal from mother's custody would still have been required.
DISPOSITION
The juvenile court's jurisdiction and disposition orders are affirmed.
We concur: COLLINS, Acting P. J. ZUKIN, J.