In re R.J. CA2/7 ( 2015 )

Filed 4/13/15 In re R.J. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re R.J. et al., B257918
Persons Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. DK05258)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
MICHELLE O.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Philip L.
Soto, Judge. Affirmed.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Melinda A. Green, Deputy County Counsel, for Plaintiff and Respondent.
______________________
INTRODUCTION
Michelle O. (Mother) appeals from an order declaring her three children, five-
year-old R.J., one-year-old M.S., and newborn Agustin S., dependent children of the
court pursuant to Welfare and Institutions Code section 300, subdivision (b),1 removing
them from her custody and placing them in the homes of their fathers, Jonathan J.
(Father J.) and Agustin S. (Father S.).2 The section 300 petition was filed after Mother
and Agustin tested positive for amphetamines at the time of Agustin’s birth, with
subsequent confirmation that Mother and Agustin also tested positive for
methamphetamine. Mother contends there was insufficient evidence to support the
juvenile court’s jurisdiction finding that the children were at risk due to her alleged drug
use. She also challenges the disposition order, arguing that the court should not have
removed the children from her custody because there was insufficient evidence that a
lesser alternative would not have protected the children. Finally, she contends the trial
court erred in granting Father J. sole physical custody over R.J., with supervised
visitation for Mother, and terminating jurisdiction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
When Agustin was born in May 2014, both he and Mother tested positive for
amphetamines and methamphetamine. Agustin was born full term, had no medical
1 Statutory references are to the Welfare and Institutions Code, unless otherwise
indicated.
2 For purposes of clarity, we will refer to the parents as Mother, Father J. and
Father S.
2
problems, and did not exhibit any withdrawal symptoms. He had APGAR3 scores of 9
and 9, and he was described as “very calm and [having] a pleasant disposition.”
When the children’s social worker (CSW) interviewed Mother at the hospital, she
denied any drug use. She told the CSW she thought someone might have drugged her,
noting that she became violently ill after attending a funeral two or three months earlier.
Mother admitted she was around friends who smoked marijuana the prior week. She also
told the CSW that she did not have any prenatal care because she only found out that she
was pregnant two months before the birth (at the end of March 2014). Mother told the
CSW that “she will do whatever it takes to get her children back as soon as possible.”
The CSW described Mother as “very cooperative” and as being “a very polite and caring
person.”
At the time of Agustin’s birth, Mother was living with Father S. and their one-
year-old son M.S. Mother shared custody of five-year-old R.J. with Father J. pursuant to
a family court order, under which R.J. lived with Mother and Father J. on alternate
weeks. A CSW visited the homes of Father S. and Father J. and found both homes to be
clean and organized, with no obvious safety hazards. Both fathers denied seeing Mother
use drugs.
Based on the positive drug tests, on May 24, 2014 the Los Angeles County
Department of Children and Family Services (DCFS) placed a hospital hold on Agustin,
detained all three children and placed them with their fathers.
3 APGAR refers to a baby’s “Appearance, Pulse, Grimace, Activity, Respiration.”
The test is used to evaluate a newborn’s health immediately after birth, with a score from
0 to 10.
3
On May 29, 2014 DCFS filed a section 300 petition alleging in count b-1 that
Agustin4 was born with a positive toxicology screen for amphetamines,5 which condition
would not exist except as a result of actions by Mother. The petition alleges in count b-2
as to all three children that Mother “is a current abuser of amphetamines, which renders
the mother incapable of providing regular care for the children.” The petition alleges in
both counts that Mother’s substance abuse endangers the children’s physical health and
safety and places them at risk of physical harm and damage.
At the detention hearing on May 29, 2014 the juvenile court found a prima facie
case for detention. The court ordered the children released to their fathers. The court
allowed Mother to live with Father S., M.S. and Agustin, as long as she was not left alone
with the children and did not breastfeed them. In addition, she was ordered to participate
in an approved drug program with weekly random drug and alcohol testing. Mother was
allowed monitored visitation with all three children.
The jurisdiction/disposition report dated June 26, 2014 notes as to five-year-old
R.J. that, according to Father J., since the detention hearing Mother initiated only two
visits with him. Mother also did not show up at R.J.’s graduation from kindergarten. The
report states R.J. “seems to be thriving in the care of father and father is willing to protect
the child from said abuse.” DCFS recommended that R.J. be released to Father J., the
4 In the petition Agustin is described as “Baby Boy” because he had not yet been
named.
5 The petition alleges in counts b-1 and b-2 that Agustin and Mother tested positive
for amphetamines because the initial hospital test results only showed screening for
amphetamine. Prior to the jurisdiction and disposition hearings, according to the last
minute information for the court, the CSW spoke with a social worker at the hospital who
provided verbal confirmation that both Mother and Agustin tested positive for
methamphetamine. A lab report for Agustin (identified as “O[.], Michelle Boy”) shows
that his sample tested positive for amphetamine and methamphetamine. Mother’s
laboratory result shows a positive “screening” test for amphetamine, but does not show
testing results for methamphetamine.
4
court terminate jurisdiction over him with a family law exit order in place, and grant
Father J. sole physical custody of R.J, with joint legal custody.
The jurisdiction/disposition report states as to M.S. and Agustin that they had been
released to Father S. and that Mother was residing in the home with Father S., M.S. and
Agustin. DCFS had attempted to interview Mother and Father S. to assess their
compliance with the plan, but neither parent had responded to the attempts. DCFS also
had not received the results of any drug testing. DCFS was therefore unable to determine
if Mother was in compliance with the detention order.
DCFS recommended that M.S. and Agustin remain released to Father S. and that
Father S. participate in parent education and substance abuse awareness classes. DCFS
also recommended that Mother be allowed to continue to reside with Father S. and the
children “[u]nless it is determined to be an unsafe plan,” and as long as she participated
in an approved substance abuse treatment program, parent education classes and
individual counseling, and submitted to random weekly drug testing. DCFS continued to
recommend that Mother not be left alone with the children and not breastfeed the
children.
In last minute information for the court, the CSW reported that she met with
Mother, Father S., M.S. and Agustin during an unannounced visit on June 17, 2014. She
reported, “[t]he children appeared healthy, well cared for and without any signs of abuse
or neglect.” The CSW questioned Mother about a “no show” drug test on June 5, and
Mother insisted that she called the lab on a daily basis, and on that date her letter did not
come up when she called in. Mother missed a second drug test on June 11, 2014, and
Mother again told the CSW that she had called in but her letter did not come up for
testing.
Mother did submit to a test on June 16, but the results were pending. Mother
stated she tried marijuana as a teenager but stopped because she did not like how it made
her feel. She later started drinking, but she stopped two years earlier, when she was 25.
The CSW at this point also confirmed with the hospital that Mother and Agustin had
tested positive at the time of Agustin’s birth for methamphetamine.
5
Mother and Father S. told the CSW that the only drug Mother took prior to
Agustin’s birth was extra strength acetaminophen for pain, but the lab confirmed that
even if Mother used a large amount of acetaminophen, this would not cause Mother to
test positive for amphetamines. Additionally, Mother had not enrolled in a substance
abuse program. Based on the new information, including that Mother had not enrolled in
a substance abuse program, had missed two drug tests, and had a confirmed test result for
methamphetamine on the day of Agustin’s birth, DCFS requested that Mother move out
of Father S.’s home immediately.
At the jurisdiction and disposition hearing on June 26, 2014, the juvenile court
admitted the DCFS reports into evidence. The court also considered, over DCFS’s
objection, a log Mother asserted she kept of her daily calls for drug testing that she
started on June 14, a graduation certificate for R.J. dated June 5, and a supermarket
receipt dated June 5 that showed that Mother had purchased what she contended were
supplies for R.J.’s kindergarten graduation party. The parties stipulated that if Mother
testified, she would state that she has not used any illicit substances since she was 14 or
15 and that she had called in twice each day, but her letter did not come up for drug
testing.
Mother’s counsel argued that there was no relationship between the positive tests
for amphetamine and risk to the baby. Mother’s counsel also argued that the CSW made
an unannounced visit to Mother and Father S. and found that the children were well-cared
for with no signs of abuse. Mother’s counsel further argued that Mother had been calling
in regularly but her letter did not come up, and that if Mother had been under the
influence of drugs, the kindergarten teacher or a parent would have called the police.
Finally, Mother’s counsel argued that the acetaminophen came from Mexico, and “there
are no other substances that the mother took that could explain a positive amphetamine
test.”
6
Counsel for DCFS noted that the hospital drug test showed positive results for
both amphetamine and methamphetamine. Minors’ counsel6 expressed concern over the
positive tests and lack of any explanation for the tests. Minors’ counsel also noted that
Mother was ordered not to miss any tests, which condition she violated. Minors’ counsel
joined in the request that Mother not reside in the home with Father S., M.S. and Agustin
“pending some participation in her program and some additional clean tests.”
The juvenile court stated that it could not “believe that the system is that broken
down that this woman would call, looks like about two weeks in a row, and not be able to
get through to the telephone number and get her number . . . when it was being called. So
it just is not believable to this court that for that two-week period her letter did not come
up. And in fact it did and she missed the test, and we don’t have proof that she’s clean
and sober.”
The court sustained the petition under section 300, subdivision (b), declared the
children dependents of the court, and found under section 361, subdivision (c), by clear
and convincing evidence that “returning the children to the mother would create a
substantial risk of detriment to their safety, protection, physical, emotional well-being,
and there’s no reasonable means to keep the children safe without removing them from
the mother.” The court ordered the children removed from Mother and released to Father
S. and Father J.
As to Agustin and M.S., the juvenile court ordered that Mother was not allowed to
live in the home of Father S. or to visit the children in the home. The court ordered
visitation for Mother three times a week in a neutral location with a neutral monitor other
than Father S. The court gave DCFS discretion to “liberalize” visitation with Agustin
and M.S. and to allow Mother to live in the home with Father S. and the children if
Mother participates in drug treatment and tests negative.
6 Minors’ counsel represented all three children at the hearing.
7
As to R.J., the juvenile court issued a custody order granting joint legal custody to
Mother and Father J., with physical custody to Father J. and primary residence with
Father J. The court allowed Mother supervised visitation with R.J. and ordered Mother to
complete a drug and alcohol treatment program with random drug testing. Over Mother’s
objection, the court ordered that R.J. be released to Father J., whom the court described as
the “noncustodial parent.”7 The court ordered the case closed as to R.J. and jurisdiction
terminated.8
DISCUSSION
A. Standard of Review
We review the juvenile court’s jurisdiction and disposition orders by applying the
substantial evidence test. (In re I.J. (2013) 56 Cal.4th 766, 773; In re Quentin H. (2014)
230 Cal.App.4th 608, 613; In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.)
“‘“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
7 The juvenile court at the hearing cited to section 361.2 as support for placing R.J.
with Father J., describing Father J. as a “noncustodial parent.” While Mother points out
that this section was inapplicable because Father J. was not a “noncustodial parent,” the
court had authority to remove R.J. from Mother and place him with Father J. as a
“nonoffending parent” under section 361, subdivision (c)(1)(B).
8 Minute orders from subsequent hearings reveal that DCFS filed a subsequent
petition under section 342. We take judicial notice of the petition and subsequent court
orders. (Evid. Code, §§ 452, 459; In re Daisy H. (2011) 192 Cal.App.4th 713, 716; In re
Karen G. (2004) 121 Cal.App.4th 1384, 1390.) On October 1, 2014 the juvenile court
ordered Agustin and M.S. removed from Father S.’s home. Father S. was ordered to
participate in a drug and alcohol program and testing. The section 342 petition was
sustained in part on January 28, 2015. The subsequent history does not affect this appeal
because Mother challenges removal of the children from her, not placement with
Father S.
8
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. [Citations.] ‘“[T]he [appellate] court must
review the whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence . . . such that a reasonable trier of fact could find
[that the order is appropriate].”’ [Citation.]” [Citation.]’ [Citation.]” (In re I.J., supra,
at p. 773; accord, In re Christopher R., supra, at p. 1216.) It is the parent’s burden on
appeal to show the evidence is insufficient. (In re Isabella F. (2014) 226 Cal.App.4th
128, 138; In re N.M. (2011) 197 Cal.App.4th 159, 168.)
Although the burden of proof at the jurisdiction phase is preponderance of the
evidence and at the disposition phase is clear and convincing evidence, “we review both
jurisdiction findings and the disposition order for substantial evidence.” (In re
Christopher R., supra, 225 Cal.App.4th at p. 1216, fn. 4; see In re A.E. (2014) 228
Cal.App.4th 820, 826.)
B. Governing Statutes and Applicable Law
Section 300, subdivision (b)(1), provides that a child may be adjudged a dependent
of the juvenile court when “[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 or guardian to adequately supervise or protect the child . . . 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.”
Section 300 requires that the risk of harm be shown at the time of the jurisdiction
hearing. (In re J.N. (2010) 181 Cal.App.4th 1010, 1023; In re Rocco M. (1991) 1
Cal.App.4th 814, 824.) However, as our Supreme Court noted in In re I.J., “section 300
does not require that a child actually be abused or neglected before the juvenile court can
assume jurisdiction. The subdivisions at issue here require only a ‘substantial risk’ that
the child will be abused or neglected. The legislatively declared purpose of these
provisions ‘is to provide maximum safety and protection for children who are currently
9
being physically, sexually, or emotionally abused, being neglected, or being exploited,
and to ensure the safety, protection, and physical and emotional well-being of children
who are at risk of that harm.’ (§ 300.2 . . . .) ‘The court need not wait until a child is
seriously abused or injured to assume jurisdiction and take the steps necessary to protect
the child.’ [Citation.]” (In re I.J., supra, 56 Cal.4th at p. 773.)
In making a determination as to whether the child is currently at risk, the court can
consider prior conduct of the offending parent. (In re Christopher R., supra, 225
Cal.App.4th at p. 1216; In re Rocco M., supra, 1 Cal.App.4th at p. 824.) Further, the
Legislature has declared in section 300.2 that “[t]he 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. Successful participation in
a treatment program for substance abuse may be considered in evaluating the home
environment.”
C. The Jurisdiction Findings Were Supported by Substantial Evidence
Mother contends there was insufficient evidence to support the juvenile court’s
jurisdiction findings given Mother’s denial of drug use (except for prior marijuana use),
the denial by Father J. and Father S. of ever seeing Mother use drugs,9 Agustin being
healthy at birth and all three children doing well at the time of the jurisdiction hearing
without any signs of abuse. Mother attempts to blame the positive drug tests at Agustin’s
birth on factors other than her drug use and her missed drug tests on the fact her letter had
not come up on the recording.
We recently addressed the risk posed to children from a mother and her baby
testing positive for controlled substances at the time of the baby’s birth in In re
Christopher R., supra, 225 Cal.App.4th 1210. There, the mother and her newborn baby
tested positive for cocaine, and the baby also tested positive for amphetamine and
9 Five year-old R.J. and the maternal grandmother also denied ever seeing Mother
use drugs.
10
methamphetamine. The mother admitted using cocaine in the past but denied using it
while she was pregnant. The mother later admitted she had picked up cocaine for
someone else and tasted it to confirm that it was cocaine. (Id. at pp. 1212-1213.) The
mother conceded that jurisdiction was proper as to the baby but contended it was
insufficient to support jurisdiction findings as to her three older children, then aged three,
six and seven. (Id. at pp. 1212, 1215.) The baby was born with respiratory issues,
although she had no withdrawal symptoms and no ongoing health issues once she left the
hospital; the three siblings appeared healthy and had no visible signs of abuse. (Id. at
p. 1213.)
In upholding the juvenile court’s jurisdiction findings, we found that the fact that
the mother used cocaine while she was pregnant “unquestionably endanger[ed] the health
and safety of her unborn child.” (In re Christopher R., supra, 225 Cal.App.4th at
p. 1217.) We held that the juvenile court’s finding that the mother endangered her four
children’s health and safety was supported by mother’s use of cocaine while she was
pregnant, her past drug use, her initial false denial of drug use, a missed drug test, and her
failure to enroll in a substance abuse program. (Id. at p. 1217.) We found that the
mother’s one missed drug test was “properly considered the equivalent of a positive test
result . . . .” (Ibid., fn. omitted.)
We also addressed the age of the children, holding that “because the children were
six years old or younger at the time of the jurisdiction hearing—children of ‘tender
years’ . . .—‘the finding of substance abuse is prima facie evidence of the inability of a
parent or guardian to provide regular care resulting in a substantial risk of harm.’
[Citations.] [The mother] did not adequately rebut that evidence. Indeed, her use of
cocaine during the last months of her pregnancy confirmed her poor judgment and
willingness to endanger her children’s safety due to substance abuse. Thus, the decision
to remove the children from her care and custody was supported by substantial evidence.”
(In re Christopher R., supra, 225 Cal.App.4th at p. 1219; see also In re Rocco M., supra,
1 Cal.App.4th at pp. 824, 825 [exercise of jurisdiction proper over “children of such
tender years that the absence of adequate supervision and care poses an inherent risk to
11
their physical health and safety,” but finding 11-year-old Rocco old enough to avoid
physical dangers].)
Here, as in Christopher R., Mother and Agustin tested positive for amphetamines
and methamphetamines when Agustin was born. Mother denied any drug use during her
pregnancy, and her family members denied seeing her use drugs. However, Mother’s
efforts to blame her positive drug tests on poisoning at a funeral or taking of
acetaminophen are not persuasive.10 More importantly, after denying any drug use and
stating she would do whatever she needed to do to get her children back, Mother missed
two random drug tests and failed to enroll in a substance abuse program.
The juvenile court did not believe Mother’s explanation that her number was not
called for random testing, instead finding that her number did come up and the court
therefore had no proof “that she’s clean and sober.” Mother also provided no
explanation as to why she failed to enroll in a substance abuse program. In other words,
Mother failed to rebut the evidence of substance abuse and “‘prima facie evidence of
[her] inability . . . to provide regular care resulting in a substantial risk of harm’” to her
young children. (In re Christopher R., supra, 225 Cal.App.4th at p. 1219.)
Mother relies on cases in which the courts found that there was not sufficient
evidence of current risk of harm to the children as a result of a parent’s drug use, citing to
In re David M. (2005) 134 Cal.App.4th 822 and In re Destiny S. (2012) 210 Cal.App.4th
999.11 Both are distinguishable.
10 As noted above, the laboratory confirmed that even high doses of acetaminophen
cannot cause a positive test for amphetamine. Likewise, the photograph of the
acetaminophen bottle does not show that it came from Mexico; the label does not list a
country of origin and the writing on the label is in English.
11 Mother also relies on In re Alexis E. (2009) 171 Cal.App.4th 438, 453, for its
holding that the “use of medical marijuana, without more, cannot support a
jurisdiction[al] finding . . . .” The use of marijuana, however, is different from the facts
here involving abuse of a controlled substance, methamphetamine, and its direct impact
on Agustin, who also tested positive for methamphetamine.
12
In In re David M., supra, 134 Cal.App.4th 822, although there was evidence that
the mother used marijuana at least once while pregnant, her baby tested negative for
drugs at birth and the mother tested negative for drugs 18 times over a four and one-half
month period between the detention hearing and the jurisdiction hearing.12 (Id. at
pp. 829, 830.)
In In re Destiny S., supra, 210 Cal.App.4th 999, the mother tested positive for
marijuana and methamphetamine even though she said she had stopped using
methamphetamine a year before. (Id. at p. 1001.) The court reversed the jurisdiction
order, however, in light of evidence that by the time of the jurisdiction hearing, the
mother had tested negative for marijuana and methamphetamine for three months and the
evidence showed that the mother was not neglecting Destiny but, to the contrary,
Destiny’s room was “neat and clean,” she attended school regularly, had no behavioral or
discipline issues, and wanted to return to her mother. (Id. at p. 1004.) In addition,
Destiny was 11 years old and “‘old enough to avoid the kinds of physical dangers which
make infancy an inherently hazardous period of life.’” (Ibid.)
Mother also relies on In re Drake M. (2012) 211 Cal.App.4th 754, 766, in which
Division Three of this district held “that a finding of substance abuse for purposes of
section 300, subdivision (b), must be based on evidence sufficient to (1) show that the
parent or guardian at issue had been diagnosed as having a current substance abuse
problem by a medical professional or (2) establish that the parent or guardian at issue has
a current substance abuse problem as defined in the DSM-IV-TR.”13
12 The mother in David M. did have missed drug tests but, unlike here, the court
found the missed tests were excused. (In re David M., supra, 134 Cal.App.4th at p. 830.)
13 The reference to the “DSM-IV-TR” is to the American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders (4th rev. ed. 2000). (In re Drake
M., supra, 211 Cal.App.4th at p. 765.) The court in Drake M. set forth the full definition
of “substance abuse” in the DSM-IV-TR to include “recurrent substance use resulting in
a failure to fulfill major role obligations at work, school, or home [including] . . .
[]neglect of children or household[].” (Id. at p. 766.)
13
While this court has found the Drake M. formulation “as a generally useful and
workable definition of substance abuse for purposes of section 300, subdivision (b),” in
Christopher R. we were “unwilling to accept [the mother’s] argument that only someone
who has been diagnosed by a medical professional or who falls within one of the specific
DSM-IV-TR categories can be found to be a current substance abuser.” (In re
Christopher R., supra, 225 Cal.App.4th at p. 1218.)
Moreover, in Christopher R., we found that the mother’s prior repeated use of
cocaine and her ingestion of cocaine while pregnant constituted recurrent substance abuse
satisfying the second prong of Drake M. (In re Christopher R., supra, 225 Cal.App.4th at
pp. 1218-1219.) Similarly, in this case, Mother’s use of methamphetamine during
pregnancy, as shown by the positive drug tests for Mother and Agustin, her denial of use
of methamphetamine, combined with two missed drug tests that we treat as positive tests,
and Mother’s failure to attend a drug treatment program, demonstrated that she had a
“current substance abuse problem” as defined in the DSM-IV-TR. In addition, all three
children were at the “tender years” of five or younger. We conclude there was substantial
evidence to support the jurisdiction finding.
D. The Disposition Order Removing the Children from Mother Was Supported by
Substantial Evidence
Mother contends that the juvenile court’s disposition order was not supported by
substantial evidence because the children could have been safe with her with the
provision of services and supervision. Section 361, subdivision (c)(1), provides that a
child “shall not be taken from the physical custody of [a parent] . . . with whom the child
resides at the time the petition was initiated, unless the juvenile court finds clear and
convincing evidence . . . [¶] [that] [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 or
guardian’s physical custody.”
14
“This is a heightened standard of proof from the required preponderance of
evidence standard for taking jurisdiction over a child [under section 300]. [Citations.]
‘The high standard of proof by which this finding must be made is an essential aspect of
the presumptive, constitutional right of parents to care for their children.’ [Citations.]
‘Clear and convincing evidence requires a high probability, such that the evidence is so
clear as to leave no substantial doubt.’ [Citation.] [¶] At the same time, jurisdictional
findings are prima facie evidence the child cannot safely remain in the home. (§ 361,
subd. (c)(1).) The parent need not be dangerous and the child need not have been
actually harmed before removal is appropriate. [Citations.]” (In re A.E. (2014) 228
Cal.App.4th 820, 825-826.)
As Mother correctly notes, section 361, subdivision (c), “embodies ‘an effort to
shift the emphasis of the child dependency laws to maintaining children in their natural
parent[s’] homes where it was safe to do so.’ [Citations.]” (In re Jasmine G. (2000) 82
Cal.App.4th 282, 288; see also In re Henry V. (2004) 119 Cal.App.4th 522, 529 [noting
“constitutionally protected rights of parents to the care, custody and management of the
children.”].)
However, Mother’s reliance on In re Jasmine G. and In re Henry V. is misplaced.
In Jasmine G., the court found no support for removal of the daughter from her mother
based on one instance of slapping the daughter and removal of a nose stud Jasmine
acquired in foster care, especially in light of mother’s remorse over use of corporal
punishment. (In re Jasmine G., supra, 82 Cal.App.4th at pp. 288-291.) In Henry V., the
court found that there was “ample evidence” that appropriate services could have allowed
Henry to remain in his family home where there was a single occurrence of physical
abuse. (In re Henry V., supra, 119 Cal.App.4th at pp. 529-530.)
In Christopher R., we found that the decision to remove the children from the care
and custody of the mother was supported by substantial evidence based on the mother’s
use of cocaine during the last months of her pregnancy, which “confirmed her poor
judgment and willingness to endanger her children’s safety due to substance abuse.” (In
re Christopher R., supra, 225 Cal.App.4th at p. 1219.) In this case, as we discuss above,
15
Mother likewise endangered her children’s safety by abusing controlled substances, as
evidenced by the fact that both Mother and Agustin tested positive for amphetamines and
methamphetamines when Agustin was born.
Mother argues that she “could have continued to test in order to avoid removing
her from the home.” This argument ignores the fact that after the detention hearing,
Mother missed two drug tests and failed to enroll in a drug treatment program. The
juvenile court allowed Mother to live in the family home with Father S., M.S. and
Agustin after the detention hearing conditioned on her participation in a drug counseling
program and weekly random drug and alcohol testing. Only after Mother missed two
drug tests and the CSW received confirmation that Mother and Agustin had tested
positive for methamphetamine were the two younger children removed from her physical
custody.
For the same reasons we discuss with respect to the jurisdiction findings, we find
substantial evidence supports removal of the children from Mother.
E. The Court Did Not Abuse Its Discretion in Entering a Custody Order Granting Sole
Physical Custody of R.J. to Father J. and Terminating Jurisdiction
Mother contends that the juvenile court erred in granting Father J. sole physical
custody of R.J., with only supervised visitation for Mother, and terminating jurisdiction.
We find the court did not abuse its discretion.
First, Mother argues that the juvenile court erred in applying section 361.2 to
remove R.J. from Mother’s physical custody. Section 361.2, subdivision (a), provides:
“When a court orders removal of a child pursuant to Section 361, the court shall first
determine whether there is a parent of the child, with whom the child was not residing at
the time that the events or conditions arose that brought the child within the provisions of
Section 300, who desires to assume custody of the child. If that parent requests custody,
the court shall place the child with the parent unless it finds that placement with that
parent would be detrimental to the safety, protection, or physical or emotional well-being
of the child. . . .”
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Mother argues that Father J. was not a “noncustodial” parent because he and
Mother had joint custody of R.J. and had him on alternating weeks. Assuming Mother is
correct (but see In re Maya L. (2014) 232 Cal.App.4th 81, 97, fn. 3 [custodial parent is
one “‘who had physical custody of the child at the time of the events that gave rise to the
petition’”], the juvenile court still properly placed R.J. with Father J. pursuant to section
361, subdivision (c)(1)(B), which provides that when the court orders a child removed
from a parent’s custody, it may “[a]llow[] a nonoffending parent or guardian to retain
physical custody as long as that parent or guardian presents a plan acceptable to the court
demonstrating that he or she will be able to protect the child from future harm.”14
As we discuss above, substantial evidence supports the juvenile court removing
the children from Mother’s care. Further, where there is a family law order in place,
section 362.4 permits the juvenile court to issue an order placing a child with the
nonoffending parent, granting the offending parent supervised visitation, and terminating
jurisdiction.15 (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712-713; see also In re T.H.
(2010) 190 Cal.App.4th 1119, 1122-1123.) Upon a change of circumstances, the
offending parent may seek a change of custody in the family law court. (In re Jennifer
R., supra, at p. 714; see also In re A.C. (2011) 197 Cal.App.4th 796, 799.)
“We . . . review the juvenile court’s decision to terminate dependency jurisdiction
and to issue a custody (or ‘exit’) order pursuant to section 362.4 for abuse of discretion
[citation] and may not disturb the order unless the court ‘“‘exceeded the limits of legal
discretion by making an arbitrary, capricious, or patently absurd determination
14 The citation of the wrong code section by the juvenile court at the hearing is
harmless error where, as here, application of the correct code section warrants the same
ruling. (See In re Maya L., supra, 232 Cal.App.4th at p. 101.)
15 Section 362.4 provides that “[w]hen the juvenile court terminates its jurisdiction
over a minor who has been adjudged a dependent child of the juvenile court prior to the
minor’s attainment of the age of 18 years, and . . . an order has been entered with regard
to the custody of that minor, the juvenile court on its own motion, may issue a protective
order as provided for in Section 213.5 or as defined in Section 6218 of the Family Code,
and an order determining the custody of, or visitation with, the child.”
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[citations].’”’ [Citations.]” (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285,
300-301; see also In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
We find no abuse of discretion in the juvenile court’s decision to terminate
dependency jurisdiction as to R.J. and to issue a custody order granting Father J. sole
physical custody of R.J., with supervised visitation by Mother. As we discuss above,
there was substantial evidence that R.J. could not safely be left in Mother’s custody, and
DCFS determined that Father J. could provide a safe and appropriate home for R.J. (See
In re Maya L., supra, 232 Cal.App.4th at p. 103.)
In addition, the juvenile court specified that it was granting Mother supervised
visitation because she had failed to make substantial progress regarding the court-ordered
drug program with random drug testing. Under the circumstances, the court did not
abuse its discretion. (See In re Christopher R., supra, 225 Cal.App.4th at pp. 1220-
1221.)
DISPOSITION
The order is affirmed.
FEUER, J.*
We concur:
PERLUSS, P. J. ZELON, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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