Opinion
B315331 B315327
05-09-2023
In re Jamie O., A Person Coming Under the Juvenile Court Law. v. J.O, Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, In re Jaelynn O., A Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.O, Defendant and Appellant.
Shaylah Padgett-Weibel, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Tracey Dodds, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. Nos. 21CCJP03248, 21CCJP03256, Craig S. Barnes, Judge. Affirmed.
Shaylah Padgett-Weibel, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Tracey Dodds, Deputy County Counsel, for Plaintiff and Respondent.
CURREY, Acting P. J.
INTRODUCTION
J.O. (father) challenges the juvenile court's findings of jurisdiction over his children, Jamie O. and Jaelynn O., under Welfare and Institutions Code section 300, subdivision (b), in two separate cases, contending the findings are unsupported by substantial evidence.
All undesignated statutory references are to the Welfare and Institutions Code.
Father also challenges the juvenile court's orders in the two cases removing his children from his custody pursuant to section 361, subdivision (c)(1). He contends neither Jamie nor Jaelynn should have been removed from him because the evidence was insufficient to demonstrate the children would be at risk of harm if they were returned to his care, or that reasonable alternatives were unavailable to protect the children.
We consolidated the cases for purposes of decision. Because we disagree with father's contentions, we affirm in all respects.
BACKGROUND
Father and C.M. are the parents of Jamie, who was born August 2013. Father and V.G. are the parents of Jaelynn, who was born in November 2009.
C.M. and V.G. are not parties to this appeal.
At the time the underlying dependency cases were initiated, Jaime resided in a home with father, C.M., and another sibling who is not a party to this appeal. Jaelynn resided in a separate home with V.G., maternal cousin, maternal aunt, and maternal grandmother. Jaelynn would spend alternate weeks between father's and V.G.'s homes, although she would sometimes skip her week with her father.
In May 2021, Jaelynn met with a school psychologist who noticed Jaelynn had cuts on her hands and arms. When speaking to the psychologist, Jaelynn admitted she recently cut herself with a kitchen knife. Jaelynn also stated she wanted to die and planned on taking an overdose of pills. Jaelynn explained she was "like this" because when she was staying in father's home, father and C.M. were "always arguing." She also claimed C.M. told her she had found "'[d]ope and [c]rack'" in father's pants and that the drugs were accessible to the children. Finally, Jaelynn reported father had been "acting different" and had left the home after arguing with C.M. The meeting with the school psychologist prompted a referral to the Department of Children and Family Services (Department).
When interviewed by the Department, father admitted he was a heroin user in the past, but claimed he no longer used the drug. According to father, he had checked into a treatment facility to detox, then "did it on [his] own." He also reported he took medication for Bipolar Disorder and Post Traumatic Stress Disorder. His medications included Adderall, Xanax, and Seroquel.
Following interviews with the Department, father voluntarily underwent a drug test. The test, taken May 29, 2021, showed father was positive for amphetamine, methamphetamine, and marijuana. When the Department confronted father with the results, he claimed he had no idea how he could be positive for methamphetamine. He also claimed he might have tested positive for methamphetamine because he was in close contact with people he tattooed. When the Department explained close contact with others could not lead to a positive methamphetamine result, father claimed the positive result might have been because of his prescribed mental health medications.
The Department later spoke to a lab tech at the lab where father took the drug test. The lab tech explained it was rare but possible for a false positive to result from some prescription medications. The lab tech advised the Department to speak with father's physician to determine if the prescribed medication could give a false positive for methamphetamine.
The Department later spoke to father's treating physician's assistant. The physician's assistant confirmed that some of the medication prescribed to father could lead to a positive amphetamine result. The physician's assistant, however, did not state the medication could lead to a positive methamphetamine result.
Father voluntarily underwent a second drug test on June 16, 2021. The second test indicated father was positive for marijuana and amphetamines but was negative for methamphetamine. The second test was also positive for benzodiazepine.
After this second test, the Department spoke to the lab director at the lab where father took the drug test. The lab director explained that methamphetamine comes in two different forms. Isomer D, or "'crystal meth,'" is the form most commonly known as being addictive. Because it is highly addictive, Isomer D is no longer prescribed by doctors. The lab director further explained that the initial drug screening test can sometimes result in a "false positive." When the lab receives an initial positive result for methamphetamine, it is the lab's practice to send the sample out for a confirmatory test to determine if the client is positive for Isomer D. The confirmatory Isomer D test does not produce a false positive.
The lab director confirmed that father's prescription for Adderall might cause a positive result for amphetamine but explained that none of father's prescriptions would cause a positive result for methamphetamine. Because father's results were positive for methamphetamine, the lab sent the results out for a confirmatory Isomer test. Father's results came back positive for Isomer D. According to the lab director, father's results could be attributed to someone who had consumed methamphetamine within one to three days before testing.
With respect to the positive result for benzodiazepine, the lab director explained father's daily prescription of Xanax should cause him to test positive for benzodiazepine on any given day. The fact that father tested negative for benzodiazepine on his first test indicated that father had likely skipped or forgot a dose of Xanax. When confronted with this information, father stated he did not trust the drug testing. Father also claimed he would not miss a dose of Xanax because a doctor had warned him missing a dose could cause a seizure.
When the Department spoke to C.M. she reported she had been in a relationship with father for 10 years. C.M. believed Jaelynn made up the allegations against father because she recently got in trouble for a social media post depicting sexual references, drug use, and self-harm.
With respect to father's drug use, C.M. reported that father had come to her a year earlier and admitted he was using heroin at work. At the time, C.M. had no suspicion father was using heroin or any other drug. C.M., however, reported she did not grow up around anyone who used drugs or who struggled with drug addiction so she did not know the signs of drug use. According to C.M., father was a "fully functional user" and he was able to work while using drugs. C.M. claimed it had scared her that she had no idea father was using drugs. While C.M. did not believe he was using drugs at the time, she admitted she did not know the signs to look for.
With respect to father's mental health, C.M. reported father's mood was "up and down and one day good and one day grouchy." C.M. claimed father managed his own medication and she could not say "100%" whether father regularly took his medication. However, C.M. admitted father would "miss a dose" of his mental health medication "on occasion and she can see his moods change."
When the Department spoke to V.G., she reported she and father had broken up because father was "abusing pills." Specifically, father was abusing his mental health medication. Around the time of the referral, Jaelynn had reported to V.G. that she believed father was on drugs. According to Jaelynn, "'father was not being himself and that's why she was worried.'" Finally, V.G. claimed "she would have no idea" if father was using drugs because she did not communicate with him.
When the Department later spoke with father in August 2021, he claimed his use of Sudafed and nasal spray could be the reason for the positive methamphetamine result. With respect to father's past addiction to heroin, father again reported he went to a drug program for one week and had been sober ever since. Father claimed he had not participated in any outpatient treatment after the inpatient treatment because he never wanted to go back to using heroin.
When the Department spoke to the lab director about father's claim, he confirmed neither Sudafed nor nasal spray would result in a positive Isomer D result.
At the August meeting with the Department, father showed the Department social worker his bottle of Xanax. Based on the label on the bottle, father had received the medication of 60 pills in February 2021. Because father was supposed to take two pills per day, the medicine should have run out by the date of the interview. Thus, the Department social worker asked father why he still had medication left. Father claimed he would transfer the pills he would receive from his new refill into the old bottle. Father also claimed he used various pharmacies because of his insurance. When asked if he ever abused his prescription medication, father claimed he used to, but had not done so since he became sober a year earlier.
The Department detained Jaime and Jaelynn from father on July 7, 2021. One week later, the Department filed separate but identical petitions on behalf of each child under section 300, subdivision (b)(1). The petitions alleged the children were at substantial risk of harm due to father's substance abuse (count b-1), mental and emotional problems, and failure to take his psychotropic medication as prescribed (count b-2).
On September 17, 2021, the juvenile court sustained the section 300 petitions as alleged as to father.
The original petitions included allegations V.G. and C.M. failed to protect the children (count b-2). The juvenile court dismissed C.M. and V.G. from the petitions.
With respect to count b-1, the juvenile court stated "father was adamant" the positive methamphetamine result was "a false positive." Accordingly, "father's denial" of his methamphetamine use "suggest[ed] there [wa]s an ongoing risk" of harm to the children. Additionally, the juvenile court noted father had participated in "a detox program but not a rehabilitation program to address [his heroin use] issues." Finally, because "[a] lot of [father's drug use] was done below the radar," it seemed father had "developed some level of skill" in hiding his drug use.
With respect to count b-2, the juvenile court noted father had medication for his mental health issues, "but it appear[ed] that he was not medication compliant." Moreover, the juvenile court noted father "may be self-medicating along the way." Because father's first drug test reflected he had not taken his Xanax as prescribed but the most recent drug test reflected he did, the juvenile court noted father had "waxed and waned in terms of his compliance"
In addressing whether removal was warranted under section 361, subdivision (c), the juvenile court noted father's drug use was done "below the radar" and C.M. was "not equipped to [ ] respond." Moreover, the juvenile court again explained father had "gone to detox," but he had "not been through rehab." Consequently, the juvenile court noted rehab would help father "learn how to work with the mental health issues, not selfmedicate, and be able to deal with the issues[.]"
Based on the foregoing findings, the juvenile court removed the children from father, released them to their respective mothers, and ordered family reunification services for father. The court granted the Department discretion to release the children to father upon his completion of five consecutive clean drug tests.
Father timely appealed.
DISCUSSION
I. Jurisdiction Under Section 300, Subdivision (b) a. Governing Legal Principles
We review a juvenile court's jurisdictional orders for substantial evidence. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992 (Yolanda L.).) Under this standard, "we view the record in the light most favorable to the juvenile court's determinations, drawing all reasonable inferences from the evidence to support the juvenile court's findings and orders." (Ibid.) "We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228 (Dakota H.).)
"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." (Dakota H., supra, 132 Cal.App.4th at p. 228.) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order." (Ibid.) "' . . . "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."'" (Yolanda L., supra, 7 Cal.App.5th at p. 992.)
When the petitions were adjudicated in these cases, section 300, subdivision (b)(1) provided that the juvenile court may exercise jurisdiction over a child if it finds "[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 the failure or inability of his or her parent . . . to adequately supervise or protect the child, or the willful or negligent failure of the child's parent . . . to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, . . . or by the inability of the parent . . . to provide regular care for the child due to the parent's . . . mental illness . . . or substance abuse."
"[T]here are three elements for jurisdiction under section 300, subdivision (b), namely, (1) neglectful conduct or substance abuse by a parent in one of the specified forms, (2) causation, and (3) serious physical harm to the child, or a substantial risk of such harm." (In re Rebecca C. (2014) 228 Cal.App.4th 720, 724725.) The first element "requires no more than the parent's 'failure or inability . . . to adequately supervise or protect the child.' [Citations.] Indeed, the surrounding provisions in section 300 support the conclusion that the first clause of section 300(b)(1) does not require parental culpability." (In re R.T. (2017) 3 Cal.5th 622, 629.) "The third element 'effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur).'" (In re James R. (2009) 176 Cal.App.4th 129, 135.)
"'The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.'" (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) In deciding whether the child is at risk of harm, the court may consider past events, as "[a] parent's past conduct is a good predictor of future behavior." (In re T.V. (2013) 217 Cal.App.4th 126, 133.) To establish a risk of harm at the time of the hearing, however, "[t]here must be some reason beyond mere speculation to believe the alleged conduct will recur." (In re James R., supra, 176 Cal.App.4th at p. 136.) b. Analysis
Father contends the juvenile court erred by sustaining both counts asserted in the children's section 300 petitions. We address his arguments regarding each count in turn.
i. Count B-1
With respect to count b-1, father contends there was no evidence the children were at substantial risk of harm due to his substance abuse. First, father contends there was no evidence he abused methamphetamine. In support, father cites the holding of In re Drake M. (2012) 211 Cal.App.4th 754 (Drake M.), disapproved on another ground in In re D.P. (2023) 14 Cal.5th 266, 283, 303, that a finding of substance abuse under section 300, subdivision (b)(1) requires evidence that (1) the parent had been diagnosed as having a substance abuse problem by a medical professional or (2) the parent has a current substance abuse problem as defined in the Diagnostic and Statistical Manual of Mental Disorders. (Drake M. at 766.) However, as father notes, other courts have rejected this formulation as an exclusive definition of substance abuse. (See In re Christopher R. (2014) 225 Cal.App.4th 1210, 1218 [Drake M.'s definition "is not a comprehensive, exclusive definition mandated by either the Legislature or the Supreme Court"]; In re Rebecca C., supra, 228 Cal.App.4th at p. 726.)
In further support of his argument that he does not have a substance abuse problem, father contends there was no evidence he was "giving up important social, occupational or recreational activities because of substance use," and that he had letters from his employer stating he was a "valued employee." Father, however, admitted his work was never impacted in the past when he was using heroin. Moreover, father points to the evidence in the record that C.M. had no reason to believe he was using drugs and that V.G. "could not believe" his drug results were positive. The record, however, reflects C.M. admitted she did not know the signs of drug use and failed to recognize father was using heroin in the past. Additionally, V.G. admitted she did not interact with father very often. Consequently, none of the evidence identified by father compels a finding that he conquered his drug abuse issues.
Father's contention that he was not a current substance abuser is contradicted by his positive test for methamphetamine. None of father's attempts to explain away the positive result, according to the lab director, were credible. "'[D]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision.'" (In re A.F. (2016) 3 Cal.App.5th 283, 293.) Both father's use of methamphetamine after he sought treatment for heroin use and his refusal to acknowledge his methamphetamine use established father had a continued and unresolved drug issue. (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197, ["One cannot correct a problem one fails to acknowledge"].)
Second, father correctly contends his alleged substance abuse, without more, cannot support a finding of juvenile court jurisdiction. (In re J.A. (2020) 47 Cal.App.5th 1036, 1046 ["The finding of dependency cannot be based on substance abuse alone; jurisdiction requires a substantial risk of harm to the child arising from the substance abuse"].) Father's contention that there was nothing "more" than drug use to establish the children were at substantial risk of harm, however, is not supported by the record.
The record shows Jaelynn felt father had been "acting differently" and believed it was because father was on drugs. Additionally, C.M. told Jaelynn she had found drugs in father's pants and the drugs were accessible to the children. This information caused Jaelynn to feel suicidal. Moreover, Jaelynn was aware father had used drugs in the past as she heard C.M. talk about father's drug use. As a result of her belief father was using drugs, Jaelynn engaged in self-harm by cutting her arms. "The court need not wait for disaster to strike before asserting jurisdiction. [Citation.] This is why the statute uses the word 'risk.'" (In re K.B. (2021) 59 Cal.App.5th 593, 603.) Finally, we note methamphetamine is "'an inherently dangerous drug known to cause visual and auditory hallucinations, sleep deprivation, intense anger, volatile mood swings, agitation, paranoia, impulsivity, and depression'" (In re Alexzander C. (2017) 18 Cal.App.5th 438, 449, overruled on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn.7.) In sum, there was ample evidence to support the trial court's conclusion that father's ongoing drug use put the children at risk of harm.
ii. Count B-2
With respect to count b-2, father contends there is no nexus between his mental health issues and a substantial risk of harm. Father relies on In re James R., supra, 176 Cal.App.4th. 129 in support of two arguments: (1) any causal relation between father's mental state and harm to the children is speculative; and (2) C.M. was available to protect the children.
In James R., the appellate court held any causal link between the mother's mental state and future harm to the minors was speculative because there was no evidence of actual harm to the minors from the mother's conduct or evidence that the parents were unable to provide care for them. (James R., supra, 176 Cal.App.4th at p. 136 [mother had a negative reaction to taking ibuprofen and drinking beer].) Here, however, the record also shows father was inconsistent in taking his mental health medication. For example, father's first drug test was positive for benzodiazepine but his second test was negative. As the lab director explained, father's daily prescription of Xanax would have caused him to test positive for benzodiazepine on any given day. The fact that father tested negative for benzodiazepine on his first test indicated that father had likely skipped or forgotten a dose. Moreover, the bottle of medication father showed the Department social worker in August 2021 was labeled February 2021. The prescription was for 60 pills. Because father was supposed to take two pills per day, the medicine should have run out by the time the interview took place. Also, father admitted to abusing his mental health medication in the past.
As noted by the juvenile court, father failed to take his mental health medication as prescribed and instead appeared to turn to drugs to self-medicate. Because father's mental health issues and his failure to take his mental health medication as prescribed caused him to rely on drugs, the juvenile court could reasonably find those issues placed his children at risk of harm. Thus, the juvenile court also could reasonably conclude the children remained at substantial risk of serious physical harm even while in C.M.'s care because, as discussed above, C.M. knew father was not medication compliant, and was unaware of father's use of illicit substances to address his mental health issues. In sum, the evidence supported the juvenile court's jurisdictional findings based on father's mental health issues.
II. Removal Under Section 361, Subdivision (c) a. Governing Legal Principles
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."
We review removal orders for substantial evidence. (See In re V.L. (2020) 54 Cal.App.5th 147, 154.) In so doing, "[w]e consider 'the evidence in the light most favorable to respondent, giving respondent the benefit of every reasonable inference and resolving all conflicts in support of the [challenged order].'" (Ibid.) "We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. The [order] will be upheld 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." (Dakota H., supra, 132 Cal.App.4th 212, 228.)
In Conservatorship of O.B., 9 Cal.5th 989, our Supreme Court clarified the nature of substantial evidence review applicable to a challenge to the sufficiency of the evidence supporting a finding made under the clear and convincing evidence standard. It held: "[A]n appellate court must account for the clear and convincing standard of proof when addressing a claim that the evidence does not support a finding made under this standard. 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 factfinder 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." (Id. at pp. 10111012.)
b. Analysis
Father contends there would be no substantial danger to the health, safety, or protection of the children if they were returned to him. Here, the same evidence that supports the jurisdiction findings also supports the removal orders.
As noted above, father was a former heroin user and a user of other illegal drugs who was using methamphetamine a year after he claimed he became sober. Additionally, father participated in a detox program, but not a rehabilitation program. These facts demonstrate father had a continued and unresolved substance abuse problem that required additional treatment. Moreover, father's use of methamphetamine, in conjunction with his denial of using the drug, creates a risk of substantial physical harm should the children remain in his custody. (See In re Cole C. (2009) 174 Cal.App.4th 900, 918 [father's refusal to accept responsibility for his conduct leading to the child being declared a dependent of the court supported a finding that there were no reasonable means to protect the child absent removal from father's custody].)
Finally, father's contention that the children would be protected because C.M. would be with them is unsupported by the record. As noted by the juvenile court, father's history demonstrates he is skilled at hiding his drug use from C.M. Moreover, C.M. admittedly lacked the knowledge and experience to recognize the signs of father's drug use. Given these circumstances, the juvenile court did not err in concluding removal from father was appropriate.
DISPOSITION
The juvenile court's jurisdictional findings and dispositional orders are affirmed.
We concur: COLLINS, J. DAUM, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to Article VI, section 6, of the California Constitution.