In re B.K. CA2/1 ( 2021 )

Filed 8/24/21 In re B.K. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re B.K., et al., Persons Coming B311119
Under the Juvenile Court Law.
_________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 20CCJP06086)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.K.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Linda L. Sun, Judge. Affirmed.
Vincent W. Davis, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Rachel Kleinberg, Deputy County
Counsel, for Plaintiff and Respondent.
_____________________________
A.K. (Mother) appeals from the juvenile court’s dispositional
orders concerning her daughters, B.K. and S.K.1 She contends
that the court erred in removing her children from her because the
Los Angeles Department of Children and Family Services (DCFS)
had not made reasonable efforts to prevent or eliminate the need
for removal and that the court failed to state the facts upon which
it based its removal decision. We reject these arguments and affirm
the orders.
FACTUAL AND PROCEDURAL SUMMARY
A. Detention
On November 11, 2020, Mother gave birth to twin girls, B.K.
and S.K. The children tested positive for methamphetamines and
Mother tested positive for “amphetamine/meth” and cannabinoids.
According to a nurse, the positive tests indicated that Mother had
used drugs within the preceding two days.
Mother, who was then 27 years old, informed a hospital
physician that she had actively used drugs since she was
21 years old. At one point, she used cocaine daily. During the last
two years she used methamphetamine and opioids. Although she
stopped using drugs in August 2020 when she learned she was
pregnant, she explained to the physician that a few days before
1 In addition to appealing from orders made at a jurisdiction
and disposition hearing on January 26, 2021, Mother’s notice of
appeal states that she is appealing from orders made at a relative
placement hearing on March 9, 2021. Her opening brief on appeal
does not include any argument challenging the March 9, 2021
orders. We therefore consider her appeal from those orders to be
abandoned. (See Title Guarantee & Tr. Co. v. Fraternal Finance
Co. (1934) 220 Cal. 362, 363; In re Andrew M. (2020) 46 Cal.App.5th
859, 864, fn. 3.)
2
giving birth she was around others who were smoking marijuana
and methamphetamine.
An immediate response referral was made to DCFS. A social
worker responded to the hospital the day after the children’s births.
Mother told the social worker that she had been using
methamphetamine for about one and a half years before she found
out she was pregnant, and then stopped. She said she does not feel
that she needs to enter a drug rehabilitation program and that her
newborn children are “her strength to stay clean.” Mother also said
that the children’s father is incarcerated and she does not want him
to have any involvement with the children.
A hospital nurse informed the social worker that the children
were “doing fine” and could be released with Mother the following
day. The social worker issued a “hospital hold” to prevent their
release.
On November 16, 2020, DCFS filed a petition under Welfare
and Institutions Code section 300, subdivision (b)(1),2 concerning
B.K. and S.K. DCFS alleged that Mother’s substance abuse had
placed, and continues to place, the children at risk of serious
physical harm or illness.
In a detention report prepared two days after the twins’
births, DCFS recommended that the children be taken into
protective custody and detained “to ensure the newborns’ safety
and to protect the newborns from the endangering or detrimental
conduct of [their] mother.” The report stated that providing
services to Mother had not been an option “[d]ue to the emergent
nature of the twins being born positive for methamphetamine.”
2Subsequent unspecified statutory references are to the
Welfare and Institutions Code.
3
A detention hearing was held on November 19, 2020.
Mother’s counsel examined the social worker, who testified that
she had asked Mother if she wanted services, and that Mother
responded that she did not need any because the “children were
her rehab.” The social worker also stated that she denied Mother
services prior to the detention hearing because Mother had denied
her recent drug use.
Mother’s counsel argued that the evidence was insufficient to
support a finding that there were no reasonable services available
that would have eliminated the need to remove the children from
Mother’s custody. The court rejected the argument and ordered
the children be detained and placed in DCFS’s custody. It further
ordered DCFS to provide Mother with referrals for parenting and
substance abuse programs and drug testing.
On November 22, 2020, Mother entered an inpatient drug
treatment program.
B. Jurisdiction and Disposition
In January 2021, DCFS filed a jurisdiction / disposition
report. DCFS reported that, according to Mother, four days
before the children were born, Mother “had a slip up” and used
methamphetamine. She explained that she “was ‘just around the
wrong person and had a weak moment.’ ” Prior to that instance,
Mother stated, she had been sober for four and a half to five
months. Although she acknowledged that her children had
methamphetamine in their systems at birth, she told the social
worker that “ ‘they had absolutely no withdrawals.’ ”
Mother also told the social worker that she had used cocaine
only once, two or three years earlier, and that she had used
methamphetamine between five and seven times. She admitted
using marijuana recreationally and tried OxyContin in March or
4
April 2020. She explained that she used drugs because of boredom,
and told the social worker: “ ‘With two kids, I definitely won’t be
bored. My kids would be my rehab. I can’t wait to be consumed by
them. I would never endanger them.’ ” She added that “she knows
right from wrong and is doing what she has to do.”
The social worker also reported on her contacts with
Mother’s substance abuse counselor, the children’s foster mother,
the children’s maternal grandfather, and the maternal aunt. The
substance abuse counselor told the social worker that Mother
“is going good so far” and “actively participating” in classes and
counseling relating to substance abuse and parenting. Mother
consistently tested negative for drugs.
The maternal grandfather told the social worker that Mother
has “ ‘made some poor choices,’ ” but that she is “ ‘working on
correcting these things.’ ” The children’s foster mother reported
that visits via video calls between Mother and the children have
gone well; Mother seems “motivated” and is always happy to see
and talk to the infants.
The maternal aunt told the social worker that Mother
had been using marijuana since she was a teenager and using
methamphetamine for the last two or three years. She was hopeful,
however, because Mother is getting help and the rest of her family
is willing to help and support her.
According to the social worker, “[M]other is still struggling
with the acceptance of her substance abuse and appears to be
minimizing her addiction and the detrimental impact it had on
her children, as she had exercised poor judgment in continuing
use despite being aware of the already high-risk pregnancy.”
The social worker acknowledged that Mother is participating
in a substance abuse program, but concluded that “releasing
the children back to her care is premature at this time given
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her history and the vulnerable age of the newborns.” DCFS
recommended, among other actions, that the court declare the
children to be dependents of the court, find that reasonable efforts
were made to prevent or eliminate the need for removal, and order
the children placed in DCFS custody.
The combined jurisdiction and disposition hearing took place
on January 26, 2021. DCFS submitted on the detention report and
the jurisdiction and disposition report, and counsel for the children
requested that the court sustain the allegations against Mother.
During the hearing, Mother’s counsel questioned a social
worker if she believed that Mother “is a danger to her children
as you sit there today,” and the social worker responded, “As
today [sic], no.” When asked about the possibility of allowing
the children to live with Mother at her inpatient facility, the
social worker testified that she believed that would be “a little
premature”; Mother has had “years of substance abuse,” she
explained, and “has been in treatment for about almost two
months” where she is “supervised around the clock.” The social
worker said she was concerned because Mother had used drugs
so close to the end of her pregnancy and “would like for her to be
able to demonstrate that she will be able to apply the things that
she’s learning in her treatment program when she is not constantly
supervised.”
The maternal aunt testified that she and Mother lived in the
same house as children until Mother was 12 years old. She stated
that she has never seen Mother use, or be under the influence of,
drugs.
Mother introduced a letter from a social worker at Mother’s
inpatient substance abuse facility. According to the letter, Mother
has been diagnosed with “mild methamphetamine use disorder”
and “mild cannabis use disorder.” She also has “various mild to
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moderate mental health symptoms.” The social worker stated that
Mother is compliant with her treatment, attends all sessions, “and
displays sincere and genuine insight and concern into her past
and present situation.” Mother has decided to “stay in residential
treatment for five months,” then apply to enter a sober living house,
where she would stay for “six months or more, depending on clinical
evaluation and recommendation.”3
Mother’s counsel argued that DCFS failed to prove by clear
and convincing evidence that the children would be exposed to
a substantial risk of serious physical harm or illness if they were
released to Mother’s care. Counsel asserted that Mother does not
pose such a risk because she has been in a rehabilitation program
for approximately 66 days and is “testing clean.” Counsel also
requested that the court place the children with Mother in her
inpatient facility and order that the children may not leave the
facility without the social worker’s permission.
DCFS argued that Mother has not fully acknowledged the
danger in which she put the children by using drugs so late in her
pregnancy and continues to minimize the risk of harm to the
children from her drug use.
The court sustained each of the allegations in the petition
and declared the children to be dependents of the juvenile court
under section 300, subdivision (b). The court found that placing the
children with Mother would be detrimental to the safety, protection,
or physical or emotional well-being of the children and that DCFS
had made reasonable efforts to prevent removal, but there are no
services available to prevent further detention. The court relied in
3 In response to the court’s inquiry, Mother’s counsel stated
that Mother’s program “has another two months,” and that she is
“planning on doing aftercare there, sober living there, so she’ll be
there for several months more.”
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part on Mother’s failure to accept full responsibility for her drug
use and her inconsistent statements about her history of drug use.
The court ordered DCFS to provide family reunification services to
Mother and the children.
On March 9, 2021, the court held a hearing pursuant to
section 361.3, at which it agreed with DCFS and the children’s
counsel that placement with the maternal aunt was not
appropriate. Mother’s counsel sought to raise the issue of allowing
the children to be placed with Mother at her inpatient treatment
facility, but the court explained that the only issue presented at
that hearing was whether the children would be placed with the
maternal aunt. The court noted that counsel had also raised the
possibility of placement at Mother’s treatment facility during his
argument at the disposition hearing, but that Mother had offered
no evidence to support such a placement. The court did, however,
direct DCFS to look into the possibility of placing the children with
Mother at her treatment facility and to report to the court on that
possibility in its next progress report.
Mother filed a timely notice of appeal.
DISCUSSION
Mother contends that the court erred by removing the
children from her custody because there was no substantial
evidence that DCFS had made reasonable efforts to prevent or
eliminate removal. She further argues that the court failed to
make required findings regarding such efforts. We disagree.
Prior to a disposition hearing, if DCFS recommends removal
of the children from the parent, its report to the court must
include a “discussion of the reasonable efforts made to prevent
or eliminate removal.” (Cal. Rules of Court, rule 5.690(a)(B)(i).)
Under section 361, subdivision (c), the court may not remove a
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minor from a parent’s physical custody unless it makes one of
five specified findings by clear and convincing evidence. Relevant
here is the finding 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 . . . physical custody.” (§ 361, subd. (c)(1); see also id.,
subd. (d).) The court must “state the facts on which the decision
to remove the minor is based.” (§ 361, subd. (e).)
We will affirm the court’s removal order if it is supported by
substantial evidence. (In re V.L. (2020) 54 Cal.App.5th 147, 154.)
Because the trial court must make the required finding by clear
and convincing evidence, “the question before the appellate court is
whether the record as a whole contains substantial evidence from
which a reasonable fact finder could have found it highly probable
that the fact was true.” (Conservatorship of O.B. (2020) 9 Cal.5th
989, 995−996.) In making this assessment, we “must view the
record in the light most favorable to the prevailing party below
and give due deference to how the trier of fact may have evaluated
the credibility of witnesses, resolved conflicts in the evidence, and
drawn reasonable inferences from the evidence.” (Id. at p. 996;
see In re V.L., supra, 54 Cal.App.5th at p. 154 [the standard of
review described in Conservatorship of O.B. applies to removal
findings under section 361, subd. (c)].) “The burden is on the
[appellant] to show that the evidence is insufficient to support the
juvenile court’s findings.” (In re A.G. (2017) 12 Cal.App.5th 994,
1001.)
Mother’s argument that DCFS failed to include in its
jurisdiction / disposition hearing report the required discussion of
the reasonable efforts made to prevent or eliminate removal was
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forfeited by failing to object on this ground below. (See In re T.G.
(2015) 242 Cal.App.4th 976, 984.) Even if the issue is not forfeited,
we reject it on the merits.
At the time of the jurisdiction / disposition hearing, Mother
was in the midst of an inpatient substance abuse treatment
program to which she was committed to completing. The only
arguably reasonable means that could have been employed to keep
the children with Mother is to have the children live with Mother
in the treatment facility. In its jurisdiction / disposition report,
DCFS rejected returning the children to Mother’s care because
of Mother’s history of substance abuse, including her use within
weeks of her gestational due date, and her denial of responsibility
for endangering the children. DCFS further stated that, the
children “are of tender age” and “particularly vulnerable to abuse
or neglect.” Although the report did not expressly address the
possibility of returning the children to Mother at her treatment
facility, the discussion indicates that returning the children to
Mother would place the children in substantial danger no matter
where Mother was living.
The report further states that the social worker, in connection
with her “[r]easonable [e]fforts” obligations, consulted “with
collaterals including service[ ] providers.” Although the report
did not specify that Mother’s treatment facility was among
the referenced “collaterals,” the social worker testified at the
jurisdiction / disposition hearing that she talked with someone
at the facility. When asked about the possibility of placing the
children with Mother there, the social worker explained that she
rejected it because it was “a little premature” in light of Mother’s
“years of substance abuse.” Although the report could have been
more explicit and provided greater detail as to the social worker’s
investigation into the possibility of returning the children to Mother
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at the treatment facility, it is sufficient to satisfy the requirements
of California Rules of Court, rule 5.690(a)(1)(B)(i); and, if it was not,
any error was harmless in light of the social worker’s clarifying
testimony.
Mother also failed to raise below the arguments she asserts
on appeal that the court failed to consider placing the children with
Mother as a “less restrictive alternative” and failed to state the
facts supporting the finding that removal was necessary to protect
the children. Any deficiency in these matters “could have been
easily cured, if raised in a timely fashion” and the “absence of a
legally effective objection” forfeits the issue on appeal. (In re E.A.
(2012) 209 Cal.App.4th 787, 791.)
We also reject Mother’s argument on the merits. The court
stated that it had “read and considered all the evidence admitted
in this case, the testimony of the witnesses, and the arguments
presented by counsel.” Such evidence, testimony, and arguments
encompassed the issue of placing the children with Mother.
As for stating the facts supporting the removal finding, the
court pointed to the evidence of the children’s “tender age,” Mother’s
lengthy history of drug abuse, and her dangerous prenatal drug
use. Considering such evidence, the court reasonably found that
returning the children to her custody barely two months into her
initial treatment program was not a reasonable means of protecting
the children. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 531,
fn. 9 [“[i]t is the nature of addiction that one must be ‘clean’ for a
much longer period than 120 days to show real reform”].)
For all the foregoing reasons, we reject Mother’s arguments
and affirm the court’s orders.
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DISPOSITION
The orders appealed from are affirmed.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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