Opinion
B300870
04-09-2020
In re S.F., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. SYDNEY L., Defendant and Appellant.
Lori Siegel, under appointment by the California Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Navid Nakhjavani, Principal 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 19CCJP04598-A) Los Angeles County APPEAL from orders of the Superior Court of Los Angeles County, Emma Castro, Commissioner. Affirmed. Lori Siegel, under appointment by the California Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
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Sydney L. (mother) appeals the juvenile court's exertion of dependency jurisdiction over her medically fragile infant as to only one of the three bases for jurisdiction as well as the juvenile court's order requiring her to drug test. Because mother's arguments lack merit, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Mother gave birth to S.F. on May 16, 2019.
S.F. is a medically fragile child. She was born with macrocephaly (that is, swelling of the brain) and with Dandy Walker Syndrome (that is, a malformation of the cerebellum). To address the swelling, doctors inserted a shunt in her skull to drain excess fluid that requires constant monitoring. As a result of her birth defects, S.F. will never walk or talk.
Mother used marijuana during her pregnancy with S.F. Mother tested positive for marijuana during two pre-natal visits in November 2018 and December 2018, admitted to using marijuana throughout the pregnancy, and tested positive for marijuana at the time of S.F.'s birth. She continued using marijuana after S.F. was born, was a "no show" for seven random drug tests in July, August, and September of 2019, and was seen smoking a joint in August 2019.
Mother has regularly engaged in physical violence and been verbally aggressive. In December 2018 (and while pregnant with S.F.), she assaulted S.F.'s father's ex-girlfriend. In late May 2017, she ripped a necklace off S.F.'s father as he was wearing it. She regularly used profanity and was "aggressive" and "hostile" with medical personnel when taking S.F. to the emergency room as well as to staff of the Los Angeles Department of Children and Family Services (the Department). Mother has threatened in-home supportive services evaluators, the personnel at drug testing labs, and her relatives who were at times caring for S.F. At one point, mother threatened to "blow up" one hospital and told a relative caregiver, "Bitch go die[.] If you hurt my baby[,] I will kill you. It's no threat it's a promise."
Mother has repeatedly ignored the advice of medical personnel. In the first few months of S.F.'s life, mother took her to the emergency room five times for care; on every occasion, mother started to leave when she was told she would have to wait. The medical personnel advised mother against leaving each time, but she either left anyway or stayed only after law enforcement was called. Mother also did not immediately fill S.F.'s prescriptions.
II. Procedural Background
In July 2019, the Department filed a petition asking the juvenile court to exert dependency jurisdiction over S.F. In the operative, second amended petition, the Department asked the court to exert jurisdiction on three grounds pertinent to this appeal: (1) mother is a "current abuser of marijuana, which renders [her] incapable of providing regular care and supervision" and "places [S.F.] at risk of serious physical . . . harm" due to her "tender age" and "her special medical needs," (2) mother has "a history of assaultive behavior toward others" that "shows a lack of self-control, self-restraint, and impulse control" that "place[s] [S.F.] at[] risk of serious harm," and (3) mother has "medically neglected [S.F.] and failed to follow medical advice" by leaving "the emergency room against medical professional['s] advisements" and by not filling prescriptions, all of which "place[] [S.F.] at risk of serious physical harm." Each basis, the Department alleged, rendered dependency jurisdiction appropriate under Welfare and Institutions Code section 300, subdivision (b).
The Department alleged that dependency jurisdiction was warranted (1) under subdivision (a) due to mother's history of assaultive behavior; mother's and father's May 2019 physical altercation with one another; and father's history of assaultive behavior, and (2) under subdivision (b) due to mother's and father's May 2019 physical altercation and father's history of assaultive behavior. However, the juvenile court dismissed these counts but took pains to explain that the dismissal was not due to lack of evidentiary support in the record.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On July 23, 2019, the juvenile court detained S.F. from her mother.
On September 17, 2019, the juvenile court held a contested jurisdictional and dispositional hearing. Mother testified, stating that she was wrongly turned away from drug testing and that anyone who said mother was aggressive was a liar. The juvenile court found mother not to be "a very credible witness" due to the "many misrepresentations" she made "in her sworn testimony."
The juvenile court sustained dependency jurisdiction on the three pertinent grounds enumerated above. The court found that mother was continuing to use marijuana; that her use constituted "abuse"; and that this abuse placed S.F. at substantial risk of serious physical harm because it prevents mother from giving her "full, 100-percent attention" to S.F., who is a "child of tender years" suffering from "significant medical complications." The court further found that mother "has a history of violent behavior," including "verbally violent behavior." The court also found that mother was neglecting S.F.'s medical care by repeatedly ignoring the advice of medical professionals.
The court removed S.F. from mother's custody, ordered the Department to provide mother reunification services, and ordered mother to participate in "random and on-demand drug testing."
Mother filed a timely notice of appeal.
DISCUSSION
Mother argues that the juvenile court erred in (1) sustaining dependency jurisdiction based on her abuse of marijuana, and (2) ordering her to participate in random drug testing.
I. Challenge to Jurisdiction Based on Drug Abuse
Mother argues that the juvenile court's finding that her substance abuse placed S.F. at substantial risk of serious physical harm is unsupported by the record. We reject this argument for two reasons.
First, it is not properly before us. Where, as here, dependency jurisdiction over a child rests on several grounds, that jurisdiction is valid if any ground is valid. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451 (Alexis E.).) Consequently, where, as here, a parent attacks only one ground for dependency jurisdiction and leaves others unchallenged, a reviewing court generally has no reason to review that challenge because it will have no effect on the juvenile court's jurisdiction. (Ibid.; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72.) To be sure, a reviewing court may nevertheless agree to review such a challenge if the challenged ground "serves as the basis for dispositional orders that are also challenged on appeal." (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763 (Drake M.).) Mother invokes this exception, arguing that her challenge to the drug testing requirement rests on the juvenile court's jurisdictional finding of substance abuse. But it does not. As explained more fully below, a juvenile court has wide discretion to impose "reasonable orders to the parents" of a dependent child (§ 362, subd. (d)), and that power is not dependent upon there being a corresponding jurisdictional finding (In re I.A. (2011) 201 Cal.App.4th 1484, 1492 ["A jurisdictional finding involving the conduct of a particular parent is not necessary for the court to enter orders binding on that parent . . ."].) Because the record contains evidence of mother's marijuana use, the juvenile court had ample authority to require drug testing for mother even without a specific jurisdictional finding regarding drug abuse; consequently, the challenged ground does not serve as the basis for a dispositional order and mother's challenge to that ground is not cognizable.
Second, mother's argument in any event lacks merit. A juvenile court may exert dependency jurisdiction over a child if, as pertinent here, 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 inability of the parent . . . to provide regular care for the child due to the parent's . . . substance abuse." (§ 300, subd. (b)(1).) In entertaining mother's challenge to the juvenile court's finding of dependency jurisdiction, we ask only whether that finding is supported by evidence that is "'"reasonable, credible, and of solid value,"'" and do so while viewing that evidence in the light most favorable to the juvenile court's finding. (In re F.S. (2016) 243 Cal.App.4th 799, 811-812.)
Substantial evidence supports the juvenile court's finding. Contrary to mother's suggestion that her regular marijuana use constitutes "substance use" rather than "substance abuse," substance abuse—even under the most stringent definition—includes drug use resulting in interpersonal problems (such as physical fights) and failure to fulfill major obligations (such as unemployment). (In re Natalie A. (2015) 243 Cal.App.4th 178, 185-186; cf. Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1345-1346 [parent gainfully employed].) Here, mother's repeated physical and verbal outbursts as well as her unemployment constitute substantial evidence that her marijuana "use" also qualifies as "abuse." Substantial evidence also supports the court's finding of risk. S.F. was four months old at the time of the jurisdictional hearing (and is still less than one year old), so she is a child of tender years. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219 [children six years old or younger are considered children of "'tender years'"].) In dependency law, the so-called tender years presumption provides that a child young enough to need constant supervision faces an "inherent" and substantial risk of serious physical harm if her caregiving parent is abusing mind-altering drugs that render the parent less capable of providing the requisite supervision. (Drake M., supra, 211 Cal.App.4th at pp. 766-767.) Where, as here, that presumption applies, the Department "need[] only . . . produce sufficient evidence that [the parent] was a substance abuser in order for dependency jurisdiction to be properly found." (Id. at p. 767.) The risk to a child from an inattentive parent is even greater for a child who, like S.F., is medically fragile and hence requires even more intense supervision. (See In re Diamond H. (2000) 82 Cal.App.4th 1127, 1138 ["risk" to child even greater for child with "special needs"], overruled on other grounds, Renee J. v. Superior Court (2001) 26 Cal.4th 735.)
Mother makes two arguments in response. First, she argues that the Department never established proof of "'an identified, specific hazard in [S.F.'s] environment'" (Drake M., supra, 211 Cal.App.4th at pp. 766-767) arising from mother's marijuana use, such as proof that mother was under the influence while caring for S.F. or that mother's aggression and willingness to ignore medical advice was specifically tied to her marijuana use. This argument is without merit because proof of such a hazard is not required where, as here, risk is established through the tender years presumption. (Ibid.) Thus, all of the cases mother cites involving older children are inapposite. (E.g., Alexis E., supra, 171 Cal.App.4th at p. 441 [children are all over the age of six]; In re Rebecca C. (2014) 228 Cal.App.4th 720, 722 [child is 14 years old]; In re L.C. (2019) 38 Cal.App.5th 646, 648 [child is six years old]; In re Destiny S. (2012) 210 Cal.App.4th 999, 1004 [child is 11 years old].) Second, mother points to evidence in the record that tends to show S.F. is not at risk, such as the cleanliness of mother's home or the opinion of a hospital social worker that mother does not pose a risk to S.F.. However, the existence of other evidence conflicting with the juvenile court's finding does not undermine the substantiality of the evidence supporting it. (In re Z.G. (2016) 5 Cal.App.5th 705, 720 ["'Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.'"].) It is also insufficient to rebut the tender years presumption because, if the absence of injury were enough, proof of a specific, identified hazard would always be required and the tender years presumption would cease to exist; that is not the law.
II. Challenge to Random Drug Testing
Mother also contends that the juvenile court erred in requiring her to submit to random drug testing. A juvenile court has the power to make any "reasonable order[]" to the parent of a dependent child that is "appropriate and in the child's best interest" and that is designed to "eliminate [the] conditions that led to the court's finding" of jurisdiction. (§ 362, subd. (d); see In re Nolan W. (2009) 45 Cal.4th 1217, 1229.) Permissible orders include drug testing. (E.g., In re Basilio T. (1992) 4 Cal.App.4th 155, 160, 172-173, fn. 9; see also In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008.) We review a juvenile court's findings in support of a particular order for substantial evidence (In re T.V. (2013) 217 Cal.App.4th 126, 136), and its decision of which orders to impose for an abuse of discretion (Drake M., supra, 211 Cal.App.4th at p. 770).
As noted above, the juvenile court's finding that mother has been using marijuana is supported by substantial evidence and its decision to impose random drug testing is not an abuse of discretion. That is because drug testing is directed toward eliminating one of the conditions leading to the court's findings of jurisdiction—namely, mother's use of marijuana. Mother's chief challenge is her contention that the juvenile court was wrong to make a jurisdictional finding based on her marijuana use. Because we affirm the juvenile court's jurisdictional finding, mother's related challenge necessarily fails.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P. J.
LUI /s/_________, J.
ASHMANN-GERST