Opinion
B302984
06-01-2020
In re L.M. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.M., Defendant and Appellant.
Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP06933) APPEAL from the jurisdictional and dispositional orders of the Superior Court of Los Angeles County, Marguerite D. Downing, Judge. Affirmed. Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
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In dependency proceedings involving 22-month-old L.M. and 1-month-old H.M. (children), the juvenile court sustained jurisdictional findings under Welfare and Institutions Code section 300, subdivision (b)(1) against A.M. (mother) and T.M. (father) because of mother's marijuana abuse, including while pregnant with both children, and father's abuse of marijuana, codeine, and morphine. The juvenile court gave custody of the children to mother, monitored visitation to father, and ordered mother to participate in services, including random drug testing and parenting education courses.
Undesignated statutory citations are to the Welfare and Institutions Code. Section 300, subdivision (b)(1) provides that juvenile dependency jurisdiction is proper if: "The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse." (§ 300, subd. (b)(1).)
Mother mounts a substantial evidence challenge on appeal. She contends father could not have posed a substantial risk of serious physical harm to the children because he had little contact with them and did not want custody. She does not otherwise challenge the juvenile court's assertion of jurisdiction based on father's substance abuse. Father is not a party to this appeal.
Mother has standing to challenge the jurisdictional finding as to father because, if the juvenile court had not asserted jurisdiction over the children, it could not have issued dispositional orders potentially affecting her rights. (See In re H.G. (2006) 146 Cal.App.4th 1, 9 ["Generally, a parent who is an aggrieved party may appeal a judgment in a juvenile dependency matter. [Citation.] To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the court's decision. [Citation.] We liberally construe the issue of standing and resolve doubts in favor of the right to appeal."].)
As to the jurisdictional findings against her, mother argues, among other reasons, that her marijuana use during pregnancy did not present a substantial risk of serious physical harm to the children at the time of the jurisdictional hearing. We do not reach mother's challenges to the juvenile court's assertion of jurisdiction based on her own marijuana use because the juvenile court had jurisdiction based on father's abuse of marijuana, codeine, and morphine—a finding mother does not challenge other than to argue father had little contact with the children and did not want custody.
We decline to exercise our discretion to address mother's attack on the jurisdictional findings against her because she has not demonstrated prejudice that does not already flow from her marijuana use during her pregnancies with the children and even when her younger child was in the hospital following her birth, and from her continued use of marijuana, although, according to her, at some point thereafter, she ceased doing so. Mother mounts no challenge to the juvenile court's dispositional orders apart from contesting the juvenile court's jurisdictional findings. Because the juvenile court may order a parent to participate in ameliorative programs and issue other dispositional rulings potentially affecting that parent's rights even absent jurisdictional findings against that parent, and because mother does not assert the juvenile court abused its discretion in ordering her to do so, we discern no error in the juvenile court's dispositional orders. In sum, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts relevant to this appeal.
On October 25, 2019, the Los Angeles County Department of Children and Family Services (DCFS) filed a juvenile dependency petition concerning the children. The petition alleged two counts under section 300, subdivision (b)(1): count b-1 against mother and count b-2 against father.
DCFS alleged in count b-1: "[L.M.'s] and [H.M.'s] mother . . . is a current user of marijuana, which renders the mother incapable of providing regular care of the children. [On] 10/15/2019, the mother had a positive toxicology screen for marijuana. The children are of such young age requiring constant care and supervision and the mother's substance abuse interferes with the mother providing regular care and supervision of the children. Said substance abuse by the mother endangers the children's physical health and safety and places the children at risk of serious physical harm and damage."
DCFS alleged in count b-2: "The children['s] . . . father . . . is a current user of marijuana, which renders the father incapable of providing regular care of the children. [On] 02/25/2019, the father had a positive toxicology screen for cannabinoids, codeine, and morphine. The children are of such young age requiring constant care and supervision and the father's substance abuse interferes with the father providing regular care and supervision of the children. Said substance abuse by the father endangers the children's physical health and safety and places the children at risk of serious physical harm and damage."
On October 25, 2019, DCFS filed a "non-detain report." (Capitalization omitted.) According to the non-detain report, "[o]n or about 9/17/2019, DCFS received a 5-day referral . . . . alleging General Neglect to minors [L.M.] and [H.M.] by mother . . . . [The reporting party] said on 09/16/2019, the mother . . . was observed interacting inappropriately with the children in her hospital room. [The reporting party] said last night the nurse observed the mother cursing at the children and using profanity. [The reporting party] said the mother referred to the newborn as[ ] [']this fucken baby.' "
The non-detain report further stated, "[the reporting party] said nurse also observed the mother pushing [L.M.] to get her into her bed. [The reporting party] said the mother also grabbed a spoon out of [L.M.'s] hand in a rough manner and then put the spoon on a dinner table. [The reporting party] said the mother displays a lot of aggressive behavior with [L.M.] [The reporting party] said the mother use[s] marijuana but [the] caller did not know how often the mother uses the drug."
A social worker assigned to the hospital where mother gave birth reported that "the nurses . . . indicated that mother wanted to leave the unit with the child [(L.M.)] for some time and mother would come back smelling like marijuana"; this social worker "stated that the odor would be strong upon mother's return." The social worker also reported the nurses "were concerned because mother would leave with . . . [L.M.] with her and they wondered where . . . the child [was] when mother was using [the drug]."
Additionally, the non-detain report noted that "[o]n 10/15/2019, mother tested positive for marijuana metabolites," and "[o]n 2/25/2019, father tested positive for marijuana, . . . Codeine, . . . and Morphine . . . ."
The non-detain report described several prior child welfare referrals involving L.M., none of which was substantiated. For instance, in connection with a December 8, 2017 referral of "[g]eneral [n]eglect," the reporting party stated: "[B]oth mother['s] and [L.M.'s] toxicology screens [were] positive for marijuana"; "mother admit[ted] to smoking marijuana two days prior to delivery"; "[m]other denie[d] having [a] medical marijuana card and state[d] she used to get high, but after [the] pregnancy she used [marijuana] to help with [her] appetite[ ] because of issues with nausea."
On October 28, 2019, the juvenile court held an initial hearing. At the hearing, the juvenile court declared father to be L.M.'s and H.M.'s presumed father. Mother thereafter entered a general denial to the petition, and the court found DCFS had made a prima facie showing that L.M. and H.M. were persons described by section 300. The juvenile court allowed the children to continue to reside with mother, authorized father to have monitored visitation, and ordered mother and father to submit to random drug testing.
Although the juvenile court's minute order identifies this event as a "[d]etention [h]earing," it was actually an "initial hearing" because DCFS did not detain the children. (See Cal. Rules of Court, rule 5.670(a) ["If the social worker does not take the child into custody but determines that a petition concerning the child should be filed, the social worker must file a petition with the clerk of the juvenile court as soon as possible. The clerk must set an initial hearing on the petition within 15 court days."].)
On November 15, 2019, DCFS filed a last minute information report, which asserted father told DCFS on November 14, 2019 that he could not attend a juvenile dependency hearing scheduled for November 18, 2019 because he was in Las Vegas.
On November 26, 2019, DCFS filed a jurisdiction/disposition report. Mother told DCFS that she had "us[ed] marijuana to help her with nausea during her pregnancy and to help her with her appetite," but she had stopped smoking marijuana and was willing to take drug tests. Mother also expressed her intention to seek full custody of L.M. and H.M. because father supposedly did not visit or call the children, help the children financially, or have any involvement in their lives since the early months of her pregnancy with H.M.
The report does not clarify whether mother stated she smoked marijuana to help her with nausea and appetite when she was pregnant with L.M., when she was pregnant with H.M., or during both pregnancies.
The report further indicated that father told DCFS on November 22, 2019 that he was "back in Los Angeles, staying at his sister's home." Father "stated that he [was] interested in seeing his children and [wanted] to have weekend visits."
On December 10, 2019, the juvenile court held an adjudication and disposition hearing, which father did not attend. At the beginning of the hearing, counsel for DCFS represented father had informed the agency that "he wanted to give full custody of the children to the mother." The court admitted into evidence the non-detain report and the jurisdiction/disposition report. Mother's counsel argued that the petition should be dismissed; DCFS's counsel contended the petition should be sustained, and the children's appointed counsel did not take a position on that issue. Mother further argued that "[i]f the court sustains the petition, . . . mother ask[s] for disposition under [section] 360[, subdivision (b) or] . . . a narrowly tailored case plan, including that mother would only have to do a full substance abuse program if her marijuana levels increase."
DCFS's exhibit list and the juvenile court's minute orders mistakenly refer to the non-detain report as a "[d]etention [r]eport."
Section 360, subsection (b) provides: "After receiving and considering the evidence on the proper disposition of the case, the juvenile court may enter judgment as follows: . . . [¶] . . . [¶] If the court finds that the child is a person described by Section 300, it may, without adjudicating the child a dependent child of the court, order that services be provided to keep the family together and place the child and the child's parent or guardian under the supervision of the social worker for a time period consistent with Section 301."
The juvenile court sustained counts b-1 and b-2 of the petition and declared L.M. and H.M. dependents of the court pursuant to section 300, subdivision (b). In the course of rendering its decision, the court remarked: (1) "[O]ne of these children tested positive for marijuana"; (2) "Mother was using [marijuana] during her pregnancy"; (3) "[i]t's lawful for adults to smoke and use marijuana, but it's not lawful for children to ingest marijuana in utero"; (4) "there have been four referrals[, including] . . . a referral in 2018"; (5) a domestic violence incident involving father had "started because [he] thought the mother was being lazy or the mother was just high"; (6) father "is an abuser of narcotics"; (7) "these children are too young to have to take care of themselves"; and (8) "on occasions it's believed that mother [was] taking care of these children [while] under the influence of drugs."
The juvenile court allowed mother to retain physical custody of L.M. and H.M. subject to DCFS's supervision; removed the children from father's custody; gave father monitored visits; and ordered mother to submit to on-demand and/or random drug testing, attend parenting education courses, and participate in individual counseling concerning case issues. The juvenile court also stated that "as long as [mother's drug] testing [shows that the level of marijuana in her body is] decreasing, then she does not need to [complete] a full on drug treatment program."
On December 11, 2019, mother appealed the juvenile court's jurisdictional and dispositional rulings.
DISCUSSION
A. Applicable Legal Principles
" '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." ' " (In re I.J. (2013) 56 Cal.4th 766, 773.)
" 'The juvenile court has broad discretion to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly. On appeal, this determination cannot be reversed absent a clear abuse of discretion.' " (In re Briana V. (2015) 236 Cal.App.4th 297, 311 (Briana V.).)
B. Mother Mounts No Substantive Challenge to the Jurisdictional Findings Against Father and Substantial Evidence Establishes He Intended to Have Future Contact with the Children
Mother does not attack the juvenile court's finding that father was a substance abuser, but instead asserts he could not have presented a substantial risk of serious physical harm to the children at the time of the jurisdictional hearing because of his lack of interest in remaining in contact with them. Specifically, she argues that "she last saw the father during the early stages of her pregnancy with H.M., . . . [father] did not attend the jurisdictional hearing," "[t]he children resided with [mother], [father] had not seen the children, . . . he desired that [mother] have full custody of the children, [citation,] [and] . . . he was not helping the children financially and was not in their lives at all." Mother's argument is not supported by the record or her principal authority, In re A.G. (2013) 220 Cal.App.4th 675 (A.G.).
In A.G., we reversed jurisdictional findings against mother even though her serious mental health issues, without considering father's care of the children, created a substantial risk of serious physical harm to the children. (See A.G., supra, 220 Cal.App.4th at pp. 677, 683-684.) We also reversed dispositional orders that included monitored visitation for mother, an order giving legal and physical custody to father, and an order requiring that the custody order be filed in the family court. (See id. at pp. 682, 687.) We reasoned, "[a]lthough the evidence supported the finding that Mother was unable to provide regular care for the minors due to her mental illness, Father has shown remarkable dedication to the minors and that he is able to protect them from any harm from Mother's mental illness. Father ensured that there was adult supervision, other than Mother, of the minors at all times." (Id. at p. 684.) Instead of asserting jurisdiction over the children and issuing custody and other dispositional orders, we counseled that "the juvenile court should have dismissed the petition, staying the order until Father obtained from the family court an award of custody to him and monitored visitation to Mother." (See id. at p. 686.)
Mother appears to argue she is similarly situated to the father in A.G. The record does not support that comparison. Contrary to mother's argument, there was evidence, which the juvenile court was entitled to credit, that father had told DCFS that "he would like to be able to visit his children." In fact, it appears that father took affirmative steps to ensure that he could see them. Father informed DCFS on November 14, 2019 that he was in Las Vegas at that time, but on November 22, 2019, he told the agency that he moved back to Los Angeles and intended to ask his sister if she could monitor his visits.
Also, unlike the father in A.G., mother did not seek an order awarding her sole physical custody of the children at the adjudication/disposition hearing. Instead, she sought "a narrowly tailored case plan" or "disposition under" section 360, subdivision (b), the latter of which would have allowed her to avoid the issuance of an order declaring L.M. and H.M. dependents of the court but permitted her and the children to receive services from DCFS. (See fn. 6, ante.) Thus, had the juvenile court declined to exercise jurisdiction as the A.G. court held would have been appropriate in that case, father here would have had unrestricted access to the children because there was no custody order in place to protect the children from him. (Fam. Code, § 3010, subd. (a).)
As In re Nicholas E. (2015) 236 Cal.App.4th 458, observed in distinguishing A.G.: "A.G. held only that there was insufficient evidence adduced at the jurisdictional hearing in that case to support the juvenile court's finding that the mother's mental illness . . . placed her children at risk of physical harm where a family court order already awarded sole custody to the father and 'where Father has always been, and is, capable of properly caring for them.' " (Nicholas E., at pp. 464-465; see also In re D.B. (2020) 48 Cal.App.5th 613, 623 [distinguishing A.G. on the ground that the "[f]ather [in D.B.] created a risk of emotional injury to [the d]aughter through his [unmonitored] visits with her—visits the family court ordered and that [the m]other was powerless to block," whereas the father in A.G. was " 'able to protect [the children] from any harm from [the m]other's mental illness,' " italics added].)
In sum, there was substantial evidence that father intended to assert his right to unfettered access to the children, and mother did not seek an order awarding her sole custody of the children. Thus, by failing to contest the juvenile court's findings that father was a substance abuser, mother has failed to demonstrate any error in the juvenile court's assertion of jurisdiction over L.M. and H.M.
C. Because the Juvenile Court Had Jurisdiction Over the Children Based on Father's Substance Abuse, We Do Not Review the Jurisdictional Findings Against Mother Where Mother Has Failed to Demonstrate Prejudice Caused by Those Findings
"As a general rule, a single jurisdictional finding supported by substantial evidence is sufficient to support jurisdiction and render moot a challenge to the other findings. [Citation.] We nonetheless retain discretion to consider the merits of a parent's appeal [citation], and often do so when[, inter alia,] the finding . . . 'could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings . . . .' " (See In re M.W. (2015) 238 Cal.App.4th 1444, 1452.)
Mother contends we should exercise our discretion to address her challenge to the jurisdictional finding against her because she "may be denied reunification services in the future should she not now comply with treatment services to the court's satisfaction." Specifically, she argues "section 361.5, subdivision (b)(13) provides that the juvenile court need not provide a parent with reunification services where the parent has a history of extensive, abusive, and chronic use of drugs and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan on at least two prior occasions, even though the programs identified were available and accessible." (See § 361.5, subd. (b)(13).)
Mother's asserted prejudice flows not from the juvenile court's jurisdictional findings, but mainly from her admitted use of marijuana while pregnant with both children and the largely unrefuted evidence of her aggressive behavior toward her older daughter while apparently under the influence of marijuana shortly after giving birth to her younger child. (Cf. In re Alexis E. (2009) 171 Cal.App.4th 438, 453 [noting that when the father smoked marijuana, he was "irritable, . . . snap[ped] at the children and ha[d] less patience with them"].) These are historic facts that exist irrespective of the juvenile court's jurisdictional finding as to her.
Furthermore, the juvenile court relied on these historic facts in ordering mother to submit to drug testing, and to participate in a substance abuse program if her marijuana levels increase. As explained in the next section, mother does not directly challenge those rulings, and the juvenile court was authorized to issue them because it had properly sustained the jurisdictional finding as to father. Therefore, declining to review the juvenile court's ruling sustaining count b-1 would not prejudice mother because it would have no effect on the dispositional rulings that she claims could impact her right to obtain reunification services in the future.
D. Mother Fails to Demonstrate Error in the Juvenile Court's Dispositional Orders
Apart from her claim that the juvenile court's jurisdictional findings were erroneous, mother does not contest the juvenile court's dispositional orders. "Section 362, subdivision (a) gives the court the authority, once a child is declared a dependent, to 'make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child.' " (In re D.L. (2018) 22 Cal.App.5th 1142, 1148.) We have held that under this provision, the validity of a dispositional order issued pursuant to that statute does not hinge on whether there is " 'a jurisdictional finding as to the particular parent upon whom the court imposes a dispositional order.' " (See ibid.) Rather, the court may issue orders pursuant to section 362, subdivision (a) so long as there are any valid jurisdictional findings. (See ibid. [" '[A] jurisdictional finding involving the conduct of a particular parent is not necessary for the court to enter orders binding on that parent, once dependency jurisdiction has been established' "].)
Accordingly, the juvenile court could order mother to participate in services and issue other dispositional rulings potentially affecting her rights (including the order that the children are under the supervision of DCFS) after it had found that father's conduct gave rise to jurisdiction under section 300, subdivision (b). Although mother could have challenged the dispositional orders against her for " 'clear abuse of discretion,' " (see Briana V., supra, 236 Cal.App.4th at p. 311), she did not and thus has waived any such challenge. (See In re J.F. (2019) 39 Cal.App.5th 70, 79-80.)
Even had she not waived such a challenge, it is not apparent that the juvenile court did abuse its discretion in ordering mother to participate in random and on-demand drug testing and parenting education courses, and in issuing its other dispositional rulings affecting mother's rights. There was evidence that mother consumed marijuana during both her pregnancies, she was under the influence of marijuana while in the presence of her children at the hospital, and she continued to use marijuana, although, according to her, she ceased taking the drug at some point prior to November 20, 2019.
DISPOSITION
The juvenile court's jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
ROTHSCHILD, P. J.
CHANEY, J.