Opinion
B328799
06-07-2024
In re A.S. et al., Persons Coming Under the Juvenile Court Law. v. S.S. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant J.S. Shaylah Padgett-Weibel, under appointment by the Court of Appeal, for Defendant and Appellant S.S. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of the County of Los Angeles, No. 20LJJP00593 Jennifer W. Baronoff, Commissioner.
Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant J.S.
Shaylah Padgett-Weibel, under appointment by the Court of Appeal, for Defendant and Appellant S.S.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Senior Deputy County Counsel, for Plaintiff and Respondent.
MORI, J.
S.S. (mother) and J.S. (father) appeal from the juvenile court's jurisdictional finding and dispositional orders declaring their daughters, A.S. (born February 2017) and E.S. (born August 2021), dependents of the court. Parents contend substantial evidence did not support the juvenile court's findings that they were substance abusers and that their substance abuse rendered them incapable of providing regular care and supervision of the children. We conclude the juvenile court's jurisdictional finding and disposition order are supported by substantial evidence and affirm.
In addition to the general background provided here, we include more facts in our discussion of the case.
A. Juvenile Court History
Parents first came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in mid-2020 from a referral alleging they were abusing drugs and engaging in domestic violence in front of A.S. The juvenile court sustained the resulting petition under Welfare and Institutions Code section 300, subdivision (b), resulting in A.S.'s removal. She was returned to parents in mid-2021, and jurisdiction terminated later that year.
All subsequent undesignated statutory references are to the Welfare and Institutions Code.
B. November 2022 Referral
DCFS received a new referral for the family less than a year later. A caller reported that A.S. had been sexually abused by multiple perpetrators, there was no protective person in the home, and one of the suspected perpetrators continued to have access to A.S. and her sister, E.S. The caller alleged that parents were again abusing drugs, and father had been at his dealer's home within the last hour.
When a DCFS social worker initially visited the home, A.S. and parents confirmed the sex abuse allegations. They indicated the first episode of abuse took place in 2019 at maternal grandparents' home, where "Andrew" exposed his penis to A.S. and persuaded her to expose her genitals. They confirmed the second episode happened a few weeks before the home visit, in early-to mid-November 2022, at the home of paternal grandmother. A.T. digitally penetrated A.S.'s anus and placed his mouth on her vagina.
Mother's first two drug tests through DCFS were positive for 6-acetylmorphine, a metabolite indicating heroin use. Father's first test was inconclusive for 6-acetylmorphine and alcohol because an interfering compound was present in his urine sample, and he refused to retest. Father's family members described his recent drug use, violence, and his attempt to conceal his drug use from testing ordered in the prior juvenile case. The juvenile court ordered the children removed from parents.
C. Jurisdictional Hearing
DCFS filed a new section 300 petition. At the jurisdictional hearing in late January 2023, the juvenile court found true amended allegations that mother's history of substance abuse and recent positive tests and father's history of substance abuse rendered them incapable of providing regular care and supervision of the children. The children were declared persons described by section 300, subdivision (b).
D. Dispositional Hearing
At the dispositional hearing in April 2023, the juvenile court found little had changed. Parents again had tested positive for 6-acetylmorphine and thereafter failed to show up for drug testing at a DCFS-approved facility. The children were declared dependents of the court and were removed from parents.
DISCUSSION
A. Governing Law
Juvenile dependency proceedings are intended to protect children who are currently being abused or neglected, "and to ensure the safety, protection, and physical and emotional wellbeing of children who are at risk of that harm." (§ 300.2, subd. (a).) Section 300, subdivision (b)(1) authorizes dependency jurisdiction whenever a child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of substance abuse or the failure or inability of the parent to adequately supervise or protect the child. (§ 300, subds. (b)(1)(A), (b)(1)(D).)
At the trial court level, the burden of proof for jurisdictional findings is preponderance of the evidence. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) At the disposition hearing, the burden of proof for removing a child from a custodial parent is clear and convincing evidence. (Ibid.)
On appeal, we review the jurisdictional findings for substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).) When reviewing the disposition order, "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." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011; see In re V.L. (2020) 54 Cal.App.5th 147, 155 ["O.B. is controlling in dependency cases"].) "'We do not evaluate the credibility of witnesses, attempt to resolve conflicts in the evidence or determine the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding.' [Citation.]" (In re M.D. (2023) 93 Cal.App.5th 836, 857.)
Parents contend substantial evidence did not support the finding at the jurisdictional hearing of substance abuse and did not establish a causal link between alleged substance use and a substantial risk of harm to the girls. Parents also contend that substantial evidence did not support the removal order.
B. Jurisdictional Findings
1. Substantial Evidence Supported the Finding of Parents' Substance Abuse
"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.) The juvenile court "'need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.'" (In re L.W. (2019) 32 Cal.App.5th 840, 849, citation omitted.) However, "drug use or substance abuse, without more, is an insufficient ground to assert jurisdiction in dependency proceedings under section 300." (Ibid., citation omitted.)
"Substance abuse," as that term is used in section 300, subdivision (b), carries its "ordinary meaning" of an "excessive use of drugs or alcohol." (In re N.R. (2023) 15 Cal.5th 520, 531 (N.R.).) No diagnosis by a medical professional is required, nor must the prevailing criteria for a substance abuse disorder, as specified within the Diagnostic and Statistical Manual of Mental Disorders, be satisfied. (Ibid.)
Substantial evidence supported the juvenile court's finding of mother's substance abuse. Paternal aunt and grandmother reported that both parents were using methamphetamine and fentanyl and possibly heroin. Mother twice tested positive for 6-acetylmorphine, indicating heroin use. Although mother blamed the result on either a natural supplement she was taking or tampering by DCFS, the juvenile court found no evidence to support either contention. The testing facility confirmed that natural supplements would not have caused a positive result for 6-acetylmorphine, and the supplement manufacturer stated that no studies existed to prove the supplement's key ingredient (wild lettuce) produced 6-acetylmorphine.
Substantial evidence also supports the finding of father's recent substance abuse. In mid-November 2022, about two weeks before the social worker's initial home visit, father admitted to paternal aunt he was only "a few days" sober. Around the same time, paternal grandmother directed father to move out of her home because of his drug use, and he assaulted her violently enough to cause a concussion. In the preceding year, paternal aunt had supplied father with Narcan multiple times to prevent his death from an overdose. A.S. described her father as a "sleepyhead" who sometimes would sleep all day.
Father contends the jurisdictional finding was based on his past substance use only. This contention is inaccurate, as the juvenile court found true the allegation-stated in present tense-that "father's substance abuse interferes with providing regular care and supervision of the children."
Father's initial drug test was inconclusive as to 6-acetylmorphine because an interfering compound was present in his urine sample, and high glucose levels prevented accurate testing for alcohol. However, father blamed the high glucose levels on a dietary supplement and refused to retest at a DCFS-approved facility. The juvenile court had reason to view this behavior with skepticism because father had a history of trying to circumvent court-ordered drug testing. In the prior juvenile case, A.S.'s return to parents was conditioned on drug testing. To pass those tests, father offered to pay a relative to supply him with clean urine because he had resumed marijuana use. Father's "implausible denial of drug use" and refusal to test provide a reasonable basis for the juvenile court disbelieving his assertion that he was not using drugs. (In re E.E. (2020) 49 Cal.App.5th 195, 214; In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217 [mother's missing a drug test was "properly considered the equivalent of a positive test result ...."], disapproved on other grounds in N.R., supra, 15 Cal.5th at p. 650, fn. 18; In re Natalie A. (2015) 243 Cal.App.4th 178, 186 [test was inconclusive due to a dilute urine sample, and father failed to show up for other drug tests he was ordered to take; "a reasonable inference could be drawn that father's marijuana use was more frequent than the one admitted instance ...."].)
Accordingly, substantial evidence supported the juvenile court's finding of substance abuse by both parents.
2. Substantial Evidence Supported the Finding that Parents' Substance Abuse Placed the Children at Risk of Serious Physical Harm
Parents next contend substantial evidence did not support the juvenile court's finding that their substance abuse interfered with providing regular care and supervision of the children and placed the children at risk of serious physical harm. We disagree.
Substantial evidence shows that parents allowed A.S. to be in the home of paternal grandmother, where A.T. lived. Parents described paternal grandmother as a violent alcohol and substance abuser. A.T.'s reported molestation of A.S. happened close in time to parents' recent drug use, and paternal grandmother was "passed out" when father placed A.S. in her care, leaving the child unprotected from A.T.
According to mother, when A.T. sexually abused A.S., "[father] was taking a shower and left [A.S.] with his mom, who was passed out."
Substantial evidence also shows that when DCFS investigated, parents were both uncooperative. Parents refused to allow a social worker to see the children without a warrant. At the initial home visit, parents would not allow A.S. to be interviewed without them present, interjected frequently, and answered questions on A.S.'s behalf.
As the investigation proceeded, mother downplayed the nature and severity of the abuse that A.S. suffered. Mother resisted referring A.S. to a forensic medical examination and interview, even going so far as to claim the child no longer contended that digital penetration occurred. From these events, the juvenile court reasonably could infer that substance abuse interfered with parents' appreciation of the harm A.S. had suffered and their willingness to investigate or mitigate the harm. (See In re A.F. (2016) 3 Cal.App.5th 283, 293 ["'[D]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision'"].)
A.S. contradicted mother's representation; in the subsequent forensic interview, A.S. described digital penetration. Additionally, at the forensic medical examination, mother similarly downplayed Andrew's conduct, characterizing his exposure of his genitals to A.S. as his "playing a game."
Parents argue that substantial evidence did not support a finding of harm or a substantial risk of serious harm to their younger daughter, E.S, either. However, neither parent sufficiently addresses the juvenile court's finding of a nexus between their substance abuse and E.S.'s self-harming behavior, specifically, that the child became easily frustrated, and when she did, she fell back, hit her head, pulled her hair, and has shoved her fists far back in her mouth in an act of frustration, sometimes causing herself to vomit. Mother does not acknowledge E.S.'s behavior at all, and father simply suggests that no inference should be made that the children's "behavior in the foster home" is related to parents' substance abuse. Both parents instead focus on positive evidence about E.S. in the record, such as her appropriate dress and lack of visible injuries.
Mother also contends the juvenile court improperly relied on the "tender years" doctrine, finding true the allegation that "[t]he children are of such a young age as to require constant care and supervision, and the mother's substance abuse interferes with providing regular care and supervision of the children." We disagree. As we have discussed, it was not the children's young age alone that served as a basis for the juvenile court's findings.
An appellant asserting lack of substantial evidence must fairly state all the evidence, not just the evidence favorable to the appellant. (Oliver v. Board of Trustees (1986) 181 Cal.App.3d 824, 832.) An appellant who challenges a factual determination "'must marshal all of the record evidence relevant to the point in question and affirmatively demonstrate its insufficiency to sustain the challenged finding.'" (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 415, citation omitted.) If the appellant fails to fairly state all material evidence, we may deem waived any challenge based on insufficiency of the evidence. (Ibid., citations omitted.)
With respect to E.S., parents have cited only the evidence favorable to them. They fail to explain why evidence of E.S.'s self-harming behavior was insufficient to support the court's jurisdictional finding. Accordingly, we conclude that parents have forfeited their contention that substantial evidence did not support the finding of harm or a risk of harm to E.S. due to parents' substance abuse.
Had parents not forfeited the argument, we would conclude that substantial evidence supported a nexus between parents' substance abuse and a risk of harm to E.S. The younger child faced the same risks as her sister, and if anything, was even more vulnerable because, at one-and-a-half years old, she was not verbal and unable to report harm. Moreover, "the more severe the type of sibling abuse, the lower the required probability of the child's experiencing such abuse to conclude the child is at a substantial risk of abuse or neglect under section 300." (In re D.B. (2018) 26 Cal.App.5th 320, 332 (D.B).)
C. Disposition Order
Parents also challenge the order removing A.S. and E.S. from their custody. Both reiterate their arguments that substantial evidence did not support a finding of substance abuse or a nexus between positive drug tests and a risk of harm to the children. Both argue the juvenile court erred in failing to order a case plan that placed children with one or both of them. We disagree.
"After the juvenile court has assumed jurisdiction, the court is required to hear evidence on the question of the proper disposition to be made of the child." (In re Anthony Q. (2016) 5 Cal.App.5th 336, 345.) Before ordering the physical removal of a dependent child from parental custody, the juvenile court must find (1) a substantial danger exists to the minor's well-being if returned home to the parent, and (2) there are no reasonable means to protect the minor's physical health without removing the minor from the parent's physical custody. (§ 361, subd. (c)(1); see § 361, subd. (e) [court must also "make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal"].) "The jurisdictional findings are prima facie evidence the minor cannot safely remain in the home." (In re T.V. (2013) 217 Cal.App.4th 126, 135, citing § 361, subd. (c)(1)].)
In determining whether a child may be safely maintained in a parent's physical custody, the juvenile court may consider the parent's past conduct, his or her response to the conditions that gave rise to juvenile court intervention, current circumstances, and any reasonable protective measures and services that can be implemented to prevent the child's removal. (D.B., supra, 26 Cal.App.5th at p. 332.)
Substantial evidence shows that removal from parents' custody was necessary to protect A.S.'s and E.S.'s physical and emotional well-being, and there were no other reasonable means by which their well-being could be protected without removal. (§ 361, subd. (c)(1).) The substantial evidence that supports jurisdiction also supports the disposition order. Moreover, circumstances after the jurisdictional hearing support a determination that parents had not made reasonable efforts to eliminate the need for removal. (§ 361, subd. (e) [court must also "make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal"].)
After the jurisdictional hearing, both parents again tested positive for the metabolite indicating heroin use and repeatedly failed to appear for DCFS testing appointments. The juvenile court reasonably could infer that parents' drug use was excessive and ongoing. (See In re Christopher R., supra, 225 Cal.App.4th at p. 1217; In re Natalie A., supra, 243 Cal.App.4th at p. 186.)
Parents continued to deny their drug use and would not agree to future testing through DCFS. (See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 [denial of drug use supported finding that parent failed to make reasonable efforts to treat her drug issues].) Mother again blamed her positive test result on a natural supplement, denied ever using heroin or morphine, and confirmed her refusal to drug test through DCFS. Father blamed his positive results on an error or DCFS tampering. He testified he would comply with an order to enter a full substance treatment program with weekly testing. However, his counsel drastically qualified father's seemingly cooperative position, stating in his closing argument that father "does object to having to do a full drug and alcohol program," and drug testing would need to be at a facility that parents were "comfortable with ...." (Italics added.)
Further, after the jurisdictional hearing, parents' failure to cooperate with law enforcement halted the criminal investigation of A.S.'s suspected abusers. Mother promised to provide the detective with A.T.'s and Andrew's contact information but never did, despite multiple calls from the detective. The criminal investigation was closed due to lack of information.
Parents knew Andrew's last name. They also knew A.T.'s first, middle, and last name, his race, age, phone number, and city of residence.
The post-jurisdiction evidence allowed the juvenile court to reasonably infer that (1) parents were unwilling to stop the substance abuse that gave rise to the dependency proceedings; (2) they were unlikely to comply with DCFS testing, making a case plan with drug testing conditions impossible or impracticable to oversee; and (3) they were disinterested in holding A.S.'s suspected abusers criminally accountable.
We conclude that the record contains sufficient evidence to support the juvenile court's dispositional order removing the children from parents' custody.
DISPOSITION
The juvenile court's jurisdiction and disposition orders are affirmed.
We concur: CURREY, P. J., COLLINS, J.