Opinion
B297204
02-14-2020
In re Ay.S., et al, Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ASHLEY H., Defendant and Appellant.
Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Peter Ferrera, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CCJP06799 A-C) APPEAL from an order of the Superior Court of Los Angeles County. Sabina A. Helton, Judge. Affirmed. Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
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In this appeal, Ashley H. (Mother) challenges the juvenile court's refusal to dismiss the petition made under Welfare and Institutions Code section 300, subdivision (b), regarding her three children: Ay.S. (born 2003), Douglas S. (born 2004), and An.S. (born 2013). Mother contends insufficient evidence supports the jurisdictional findings and the court was required to dismiss the petition when it ordered informal supervision under section 360, subdivision (b). We affirm the jurisdictional findings and dispositional order.
All further section references are to the Welfare and Institutions Code.
FACTS
Mother's adult son, D.H., was arrested in September 2018 in connection with a string of burglaries that targeted celebrity homes. Mother informed police that she received a phone call from D.H. after he was arrested, asking her to "clean up." As a result, Mother began to throw out everything "that was too much or too flashy," including two Louis Vuitton backpacks, a Gucci purse, and four watches. Mother also retrieved approximately $35,000 in cash and a handgun from his dresser. The handgun was located in the home and accessible to the children. Mother claimed she did not know there was a firearm in the home. Mother placed the items in her car, where officers recovered them while executing a search warrant.
Mother admitted to officers that D.H. was a member of the 62 Brim street gang with a moniker of Lil Bad News. She knew D.H. had been "flocking," which is "[w]hen they knock on people's doors go into the houses and rob their home for valuables. I am not a fool, the jewelry they buy, the cars they buy, the way they able to keep bail money." Mother further admitted D.H. had given her a Jeep Cherokee with paper plates in May 2018, which the police discovered was stolen. When asked why she did not find it strange that son gave her a car, she replied, "What I don't know don't hurt me, just don't get me involved and keep it away." D.H. was arrested in the home, but Mother denied D.H. lived in the home, stating he was "in and out of the home." Both Ay.S. and Douglas reported D.H. stays in the home "sometimes."
When social workers arrived at Mother's home in response to a referral from law enforcement, they noticed a strong "stench" of marijuana emanating from the house. They smelled marijuana throughout the three-bedroom home after they entered. Mother initially denied any drug use in the home. She then became defensive, asserting she was allowed to consume marijuana whenever she wanted because it was legal. She also stated she smoked marijuana under her porch and palm tree. Mother later admitted she cared for five-year-old An.S. while consuming marijuana.
Fifteen-year-old Ay.S. reported she was not doing well at school due to attendance issues. She told the social workers she began to smoke marijuana approximately a month ago. Ay.S. stated that Mother knew about it and allowed her to smoke in the house. Mother admitted she discovered in 2018 that Ay.S. smoked marijuana, but she "didn't set that boundary" and "can't stop her from smoking weed." Ay.S.'s probation officer was also aware of her marijuana usage.
The juvenile court issued a removal order for the children. When the social workers arrived with law enforcement to retrieve the children, the situation quickly devolved into chaos. The children hid in the bedroom. Ay.S. attempted to shut the bedroom door to prevent the social workers from entering and threatened them: "Don't fucken touch them. I will fuck you up bitch." Ay.S. also refused to leave the home. Mother soon arrived home and screamed for everyone to "get the fuck of [sic] her property." She then hit one of the police officers and had to be handcuffed. Ay.S. ultimately agreed to comply to help the other children get ready to leave.
Mother called the social worker to ask how to cooperate with DCFS. She was advised to drug test, take parenting classes, and go to counseling. Mother subsequently tested positive for cannabinoids on November 13, 2018 at a level 15/50, but tested negative on November 8, 2018, November 28, 2018, and December 7, 2018.
A section 300 petition alleged Ay.S., Douglas, and An.S. were at risk of serious physical harm as the result of Mother's substance abuse and conduct, including allowing D.H., a known gang member involved in criminal activity and possessing a loaded firearm accessible to the children, to reside in the home and allowing 15-year-old Ay.S. to abuse marijuana.
In further interviews with DCFS, Mother denied D.H. was known to be a gang member, but stated "he may hang out with them." Mother also suggested the items taken from her during the search were either gifts from a male friend or gifts she purchased for herself. Mother reported to DCFS that D.H. had been in and out of jail since he was 12 years old for crimes including burglary and robbery. However, Mother asserted she did not know what D.H. was doing and that she would not have let him bring things into the house if she knew he was committing crimes. Mother then admitted she "turned a blind eye and deaf ear because I don't want to get in trouble. Thank God I found the gun and my kids didn't find it, it was negligence on my part."
Mother stated she occasionally smoked marijuana on Douglas's father's birthday and death day, but continued to deny smoking marijuana on any other occasions. She also denied letting anyone smoke in the house and stated she did not even smoke cigarettes in the house. Ay.S. and Douglas both reported that Mother did not smoke marijuana.
Ay.S. denied knowing D.H. was a gang member but acknowledged he often brought new clothes and shoes into the house. Ay.S. stated she had stopped smoking marijuana for two months because she had been placed on probation for battery and vandalism. Douglas denied anyone had known there was a gun in the house. He had heard from others that Ay.S. smoked marijuana, but had not seen her do so. An.S. said Mother smoked "short and white' cigarettes on the back porch. She denied ever seeing Ay.S. smoke anything.
The family underwent a multidisciplinary assessment and it was recommended Ay.S. and Douglas receive mental health services to address their feelings of anger. In its jurisdiction/disposition report, DCFS recommended "the children be returned to the care of the Mother, the petition be dismissed pursuant to [section 360, subdivision (b)] and that Probation provide the child, [Ay.S.], with Wraparound Services. The family is to complete individual counseling and Mother to complete parenting classes."
The juvenile court released the children to Mother's custody with unannounced home visits by DCFS. The court ordered that D.H. was not to be in the family home should he be released from custody.
At the jurisdictional and dispositional hearing, counsel for DCFS clarified DCFS had mistakenly requested dismissal in its report. It instead sought a disposition under section 360, which allowed DCFS informal supervision of the family and the opportunity to file a petition if Mother failed to participate in services. (§ 360, subds. (b)-(c).) Mother's counsel requested dismissal of the section 300 petition.
The juvenile court sustained three counts under section 300, subdivision (b), as follows:
"b-1: [Mother] has a history of substance abuse and is a current abuser of marijuana, which renders the mother incapable of providing regular care of the children. On numerous prior occasions, the mother was under the influence of marijuana while the mother was providing care and supervision of the children. The child [An.S.] is 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 child. Such substance abuse by the mother endangers the children's physical health and safety and places the children at risk of serious physical harm, damage, and danger.
"b-2: [Mother] created a detrimental and endangering home environment for the children in that [Mother] allowed [D.H.], whom is known to be a gang member and participates in criminal activities to reside in the children's home and to have unlimited access to the children. [D.H.] possessed a firearm and ammunition in the children's home within access to the children. On 09/30/2018, the mother was arrested for grand theft auto. On or about 09/28/2018, [D.H.] was arrested due to first-degree burglary. Such a detrimental and endangering home environment established for the children by the mother endangers the children's physical health and safety and places the children at risk of serious physical harm damage and danger.
"b-4: [Mother] has failed to provide appropriate parental care and supervision of the child, [Ay.S.], by allowing the child . . . to abuse marijuana inside the children's home. Such failure to provide appropriate parental care and supervision by the children's mother endangers the children's physical health, safety, supervision, and places the child [Ay.S.] and the siblings, Douglas and [An.S.], at risk of serious physical harm, damage and danger."
The juvenile court explained, "there must have been awareness on Mother's part of criminal activity taking place in the house, and I don't think there could be a more dangerous situation for kids than a loaded gun being within reach of kids who are quite young, especially a five year old. I think that we are very fortunate that nothing worse happened to these children, and there does seem to be evidence of high marijuana usage in this house. [¶] And lastly, we have Ay.S.'s own statement that she smokes inside and outside the home and that her Mother is fully aware and allows her to smoke marijuana. So I am sustaining those counts and dismissing the other two."
The juvenile court then terminated jurisdiction with an order for DCFS to supervise the family for six months pursuant to section 360, subdivision (b). Mother filed a notice of appeal on March 7, 2019.
DISCUSSION
Mother relies on the return of the children to her custody and DCFS's recommendation of informal supervision to argue there was no substantial risk of harm to the children by the time of the jurisdictional and dispositional hearing. Mother contends the juvenile court should have dismissed the section 300 petition as a result. We disagree.
When a parent challenges a juvenile court's jurisdictional findings on appeal, the reviewing court applies the substantial evidence standard of review. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The appellate court must examine the record in a light most favorable to the juvenile court's findings, accepting its assessments of the credibility of the witnesses. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1427.) The juvenile court's findings must be upheld when there is any substantial evidence that supports them, resolving all conflicts in support of the findings and indulging all reasonable inferences in favor of the findings. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.)
"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 Alexis E. (2009) 171 Cal.App.4th 438, 451 (Alexis E.).)
Under section 300, subdivision (b)(1), the juvenile court may exercise jurisdiction over a child when 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 of his or her parent to "adequately supervise or protect the child" or by the failure of the parent to "provide regular care for the child due to the parent's . . . mental illness, developmental disability, or substance abuse."
Mother contends the issues which brought the children to the court's attention were resolved by the time of the jurisdictional hearing. In particular, Mother asserts D.H. was incarcerated and would no longer reside at home; Mother was no longer using marijuana, having tested negative three out of four times; and Ay.S. had stopped smoking marijuana. As a result, there was no current risk of harm to the children and the juvenile court should have dismissed the petition. We are not persuaded.
Substantial evidence showed Ay.S. had not stopped using marijuana and that a substantial risk of harm remained on that basis at the time of the jurisdictional hearing. Although Ay.S. claimed she stopped smoking marijuana because she was on probation, her probation officer acknowledged he knew she smoked it and did not indicate he would stop her. On December 4, 2018, Ay.S.'s foster mother reported Ay.S. has "come home smelling like weed" on several occasions and Ay.S.'s roommate has also smelled marijuana on her. Mother admitted she could not stop Ay.S. from using marijuana and never tried to establish that boundary. There is no evidence that Mother's view of Ay.S.'s marijuana use changed. Indeed, throughout the proceedings, Mother was adamant that marijuana use was legal. She also never acknowledged any potential harm that could result from marijuana usage.
Mother's permissive attitude regarding her 15-year-old daughter's marijuana use presents a substantial risk of harm to the younger children, particularly 14-year-old Douglas. At a minimum, it presents a risk to 5-year-old An.S.'s health through second-hand smoke. (See Alexis E., supra, 171 Cal.App.4th at p. 452 ["While it is true that the mere use of marijuana by a parent will not support a finding of risk to minors [citations], the risk to the minors here is not speculative. There is a risk to the children of the negative effects of secondhand marijuana smoke."].) Contrary to Mother's assertion, the risks presented by Ay.S.'s marijuana use remained as of the jurisdictional and dispositional hearing. Ay.S.'s marijuana use alone is sufficient to support jurisdiction over the children. (Id. at p. 451 ["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"].)
Additionally, we disagree with Mother that section 360 requires dismissal of the petition. Section 360, subdivision (b), provides for a six-to 12-month period of informal supervision by DCFS where the child remains in the home, the family works with social services without court supervision, and the child is not placed at an unacceptable level of risk. " 'If the court agrees to or orders a program of informal supervision, it does not dismiss the dependency petition or otherwise set it aside.' " (In re Adam D. (2010) 183 Cal.App.4th 1250, 1260, quoting Seiser & Kumli, Cal. Juvenile Courts Practices and Procedure (2009) § 2.124[2], pp. 2.283-2.284; see In re Israel T. (2018) 30 Cal.App.5th 47, 51, fn. 4.) Mother has provided no authority to the contrary. The juvenile court did not err when it declined to dismiss the petition upon ordering informal supervision under section 360, subdivision (b).
DISPOSITION
The challenged jurisdictional findings and dispositional order are affirmed.
BIGELOW, P. J. WE CONCUR:
STRATTON, J.
WILEY, J.