In re Esmeralda R. CA2/7 ( 2022 )

Filed 9/16/22 In re Esmeralda R. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re Esmeralda R. et al., B314504
Persons Coming Under the (Los Angeles County Super.
Juvenile Court Law. Ct. No. 17CCJP00149)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff,
v.
CAROLINA R.,
Defendant and Appellant,
NOE R.,
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Nichelle L. Blackwell, Juvenile Court Referee.
Affirmed.
Gina Zaragoza, under appointment by the Court of Appeal,
for Defendant and Appellant Carolina R.
Jack A. Love, under appointment by the Court of Appeal,
for Respondent Noe R.
__________________________
Carolina R. (Mother) appeals from a juvenile court order
terminating dependency jurisdiction and entering a juvenile
custody order under Welfare and Institutions Code section 362.4,
subdivision (a).1 The juvenile custody order granted Noe R.
(Father) sole physical custody of 12-year-old Esmeralda R. and
seven-year-old Anthony R. with monitored visits for Mother, and
joint legal custody with Father having tie-breaking authority.
Mother contends the juvenile court abused its discretion in
terminating jurisdiction at the disposition hearing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prior Dependency Case
On September 8, 2017 the Los Angeles County Department
of Children and Family Services (Department) filed a petition on
behalf of eight-year-old Esmeralda, three-year-old Anthony, and
1 Further statutory references are to the Welfare and
Institutions Code.
2
their nine-year-old half-sister, Hazel A.,2 based on Mother’s and
Father’s substance abuse. On January 26, 2018 the juvenile
court sustained the allegations Mother had a history of substance
abuse, including methamphetamine, and Mother and Father
were under the influence of alcohol while caring for the children.
The court declared the children dependents of the court, removed
them from the parents’ custody, and ordered the parents to
participate in a drug/alcohol program (Mother) and alcohol
program (Father), weekly testing, parenting classes, and
individual counseling. On December 11, 2019 the court
terminated jurisdiction with a juvenile custody order granting
Mother and Father joint legal and physical custody of Esmeralda
and Anthony. Under the custody order, Father had physical
custody of the children from Tuesday evening until Sunday
morning, with Mother having custody the remaining time.
B. The Referral and Investigation
On May 3, 2021 the Department received a referral
alleging Father, who was separated from Mother, suspected
Mother was using drugs and exposing the children to drugs.
Father requested the children’s doctor order drug testing for the
children. Esmeralda’s April 30 urine analysis was positive for
opiates and marijuana; Anthony’s test was negative. Father
reported Esmeralda had been “defiant, rebellious, and too hyper”
for the past few months. The paternal grandmother, who took
2 On February 5, 2018 the juvenile court terminated
jurisdiction over Hazel with a custody order giving her father
(Edgar A.) sole legal and physical custody. Mother’s appeal
involves only Esmeralda and Anthony.
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care of the children when Father was at work, confirmed
Esmeralda had recently become more defiant, and when
Esmeralda returned from Mother’s home, she was more
aggressive and at times disrespectful.
Father suspected Mother was using methamphetamine
because he noticed starting in September 2020 that she quickly
lost weight and looked unhealthy. The social worker observed
Mother was “very skinny and appeared unhealthy” with dilated
pupils, but Mother was able to speak clearly. Mother questioned
the accuracy of Esmeralda’s test results and told the social
worker she suspected Esmeralda could have obtained marijuana
from Father. Mother admitted she used methamphetamine on
May 2, 2021 after she ended her relationship with her boyfriend,
Jose I.
During the social worker’s May 3, 2021 interview of
Esmeralda, Esmeralda stated she smoked marijuana at Father’s
house. Esmeralda claimed she would sneak inside Father’s
bedroom when he was not home and smoke the marijuana he
kept in his room. But in a second interview two days later,
Esmeralda teared up and admitted she had lied during the first
interview. Esmeralda stated Father did not have marijuana in
the home, but he used to smoke marijuana at a friend’s house on
weekends. Esmeralda and the friend’s daughter would smoke the
“‘blunt’” when Father and his friend were not looking. Esmeralda
reported the last time Father, his friend, and their families got
together was for a fishing trip at the end of 2020.
Esmeralda disclosed that she first tried marijuana in the
summer of 2020 at Mother’s home, where Mother provided her
with the marijuana. According to Esmeralda, Mother also
provided Hazel with marijuana, and “Hazel has been smoking for
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a long time.” Esmeralda stated, “‘[W]hen Jose is home we all
smoke together but normally it’s just my mom, Hazel and me.’”
Esmeralda reported Mother had a light blue pipe and a clear
bong with a “‘glow in the dark’” mouthpiece. Anthony was
sometimes present when Mother, Hazel, and Esmeralda smoked
marijuana in Mother’s home. When the social worker asked if
Mother had offered marijuana to Anthony, Esmeralda answered,
“‘[N]o, not yet because my mom said he’s too small.’” Esmeralda
explained she lied during the initial interview because Mother
instructed Esmeralda and Anthony not to disclose what was
happening in Mother’s home. Esmeralda added, “‘I knew you
guys were going to take me away from my mom and I didn’t want
that to happen.’” Esmeralda felt safe living with Father, but she
wanted to continue having visits with Mother.
The social worker reported that in her May 3 interview
with Anthony, Anthony appeared nervous and “may have been
coached given he was in the car with mother while [the social
worker] interviewed Esmeralda and Hazel.” Anthony stated
Mother smoked cigarettes outside the home, but he did not know
whether Hazel or Esmeralda smoked. Anthony felt safe with
Father, and he did not like visiting Mother. In a May 5
interview, however, Anthony reported Mother, and sometimes
Hazel and Esmeralda, smoked cigarettes. He also saw Mother,
Esmeralda, and Hazel smoking out of a light blue pipe. He
denied witnessing Father drink alcohol or use drugs.
After interviewing Esmeralda and Anthony, the social
worker called Mother, who claimed Esmeralda had lied about
Mother giving her marijuana. Mother reported she caught Hazel
and Esmeralda using Mother’s vape device two weeks earlier and
took it away from them.
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Both Mother and Father agreed to submit to drug tests.
Father’s May 5, 2021 drug test was negative for all substances.
Mother’s May 6, 2021 drug test was positive for marijuana.
C. The Dependency Petition and Detention
On May 14, 2021 the Department filed a dependency
petition on behalf of Esmeralda and Anthony under section 300,
subdivisions (a), (b)(1), and (j), alleging Mother and Jose had a
history of engaging in violent altercations in the presence of the
children; Mother had a history of substance abuse and was a
current abuser of methamphetamine and marijuana; and Mother
caused Esmeralda and Hazel to consume marijuana in the
presence of Mother and Anthony and to provide false statements
to the social workers.
At the May 19, 2021 detention hearing, Father’s attorney
noted Father was a nonoffending parent and requested “the
court . . . close the case at disposition.” The juvenile court
detained Esmeralda and Anthony from Mother and released
them to Father. The court ordered Mother to participate in a
substance abuse program, weekly random drug testing, a
parenting class, domestic violence for victims, and individual
counseling. The court granted Mother monitored visits for six
hours per week with Father “not to monitor or be present during
mother’s visits.”
D. The Jurisdiction and Disposition Report
According to the July 22, 2021 jurisdiction and disposition
report, Mother tested positive for marijuana metabolites on May
6 and June 17, 2021, and amphetamine and methamphetamine
on June 24 and 28, 2021. Mother told the dependency
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investigator she only used methamphetamine when she broke up
with Jose in May 2021 and again in June because she missed her
children. Mother said she used marijuana to help her with
insomnia and body aches. She smoked marijuana from a vape
pen or pipe outside at night while the children were asleep.
Mother had not yet enrolled in any services, but she was willing
and motivated to enroll in a substance abuse program.
Mother again denied giving marijuana to Esmeralda and
Hazel. Mother explained, “‘I would always hide my marijuana
vape pen in my room so my kids wouldn’t find it.’” Mother
described one occasion when she came home and found half of the
marijuana in her vape pen was gone. Mother asserted Anthony
said Hazel and Esmeralda used the marijuana. Mother
continued, “‘I went over to [Hazel and Esmeralda] and I told
them that it wasn’t okay for them to use marijuana. Hazel told
me her boyfriend introduced her to it. I think Esmeralda smoked
it because of peer pressure from Hazel. That was the only
incident where they smoked it. Since then I hid my vape pen
somewhere else. I haven’t observed them to be under the
influence of marijuana any other time. I did not introduce it to
them or just let them smoke marijuana.’”
In a July 5, 2021 interview with the dependency
investigator, Esmeralda denied Mother provided her with
marijuana, explaining she and Hazel would steal marijuana from
Mother’s room to smoke. Further, Mother was never under the
influence of marijuana with the children. Esmeralda explained,
“‘When I was at my mom’s house she would often leave for hours
at a time. . . . Hazel and I would smoke her vape pen and then
we would use the air freshener spray and spray the whole house
so my mom couldn’t tell we were smoking her marijuana vape
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pen. She eventually found out but she didn’t do anything about
it, she would just hide her vape pen somewhere else in the house,
but we would always find it. My mom couldn’t do anything to
stop us, we could smoke it whenever we wanted to.’” Esmeralda
said she was “‘doing fine’” with Father but wanted to live with
Mother.
Father stated he knew Mother was abusing drugs and
trying to hide it. He added, “‘I need to keep my children safe,
even if it means keeping them safe from their own mother. I
know [the Department] has brought up issues about my
substance abuse history but that is in the past. I addressed my
issues and reunified with my kids.’” Father acknowledged
Esmeralda was smoking marijuana at Mother’s home, Mother
was coaching her, and Esmeralda was having a difficult time
being separated from Mother; as a result, Esmeralda “‘really
needs to stay in therapy to cope with all of this.’” As of July 2021
Esmeralda and Anthony were receiving individual counseling,
and Esmeralda had started behavioral therapy.
E. The Jurisdiction and Disposition Hearing
At the July 22, 2021 jurisdiction and disposition hearing,
minor’s counsel urged the juvenile court to sustain the
allegations as to Mother except the allegation under section 300,
subdivision (a), and to terminate jurisdiction. Father’s attorney
joined in the request to terminate jurisdiction, and he requested
the court enter a juvenile custody order granting Father sole
legal and physical custody. The attorneys for Father and the
children noted Father was nonoffending, Mother tested positive
for methamphetamine twice and had not enrolled in any
programs, and the children had access to marijuana (whether
8
provided by Mother or found in Mother’s home). Further, the
children felt safe with Father. Mother’s attorney argued with
respect to the substance abuse allegations Mother never provided
the children with marijuana and Mother was not aware
Esmeralda was smoking. Mother’s attorney requested the court
not terminate jurisdiction because Mother wanted an opportunity
to reunify with her children. The Department requested the
court sustain the allegations under subdivisions (b)(1) and (j), but
as to disposition it requested the court leave the case open to give
Mother an opportunity to reunify. In the alternative, the
Department requested the court grant Father sole legal and
physical custody of the children because Esmeralda was
comfortable living with Father, Anthony preferred to live with
Father, the parents had a contentious relationship, and Mother
previously coached the children to lie.
The juvenile court sustained the domestic violence and
substance abuse allegations under section 300, subdivisions (b)(1)
and (j), including the allegations Mother provided marijuana to
Esmeralda and Hazel and caused Esmeralda to provide false
statements to the social workers. The court dismissed the
domestic violence allegation under section 300, subdivision (a).
The court explained, “I do agree that the mother has been rather
deceptive in this case. She coached the child Esmeralda to lie
and say that the father was the one who was supplying the
marijuana to the child. And then this child gave this lengthy
story to the emergency social worker about the father’s drug use
and that the father is the one that showed her how to use
marijuana and she used it when her father wasn’t there. But
then I guess her conscience got the better of her and Esmeralda
came clean and told the truth. Later on when she was re-
9
interviewed by the emergency social worker, she stated that she
got the marijuana from the mother, that mother offered it to her,
[and] the mother asked her if she wanted to try it. She tried it,
she’s used it, and she used it with her mother. She also stated
that she and Hazel both have used it with the mother, [and] the
mother[’s] ex-boyfriend Jose [I.] and that sometimes they used it
when Anthony was around and other times when Anthony was
not around. . . . [¶] . . . [¶] Esmeralda is only what, 13 years old.
And it’s unfortunate to get a child started on drugs this early in
life, and I’m very saddened to hear this and I’m very concerned
that this could occur also to Anthony.”
The juvenile court observed that Mother admitted she
started using methamphetamine when she was 15 after
witnessing her mother being beaten by maternal grandmother’s
partner, and again when she broke up with Jose. The court
found that “any time there is some trauma in the mother’s life, it
triggers her to use. Which means she has no coping skills, which
means she hasn’t developed how to get over issues that are not
going her way or are traumatic and instead she self-medicates
with methamphetamine.”
The court found by clear and convincing evidence removal
was necessary to protect the children and there were no other
reasonable means to protect them. The court expressed a concern
that Esmeralda stated Anthony had not “‘yet’” used marijuana.
The court found, “[Esmeralda] said that her mother stated that
the child is not old enough yet. And that is a concern very much
to this court, that the mother would then corrupt the child
Anthony and let him get started. Additionally, Anthony himself
stated that he doesn’t feel safe in the mother’s care, he is happy
in the father’s care and wants to remain there. While I see that
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Esmeralda wants to return back to Mother, I question her
motive. I question why she wants to return and it’s probably
because she feels she can use marijuana anytime she wanted in
the mother’s care. And this is not good and I’m not going to allow
that to happen, at least on this court’s watch.”
The court terminated jurisdiction with a juvenile custody
order, explaining, “I find there’s no basis to maintain jurisdiction
in this matter because Father has shown himself to be extremely
protective over his children. He’s the one that got the children
drug-tested because he thought perhaps the mother was using
drugs and allowed these kids to get a hold of it. . . . They were
tested and Esmeralda’s urine came back positive for marijuana
and opiates. So he’s done everything a parent should do to
protect his children. And I have no doubt that he would continue
to do this without [the Department’s] intervention. So the court
need not keep this case open, because I find under Welfare and
Institutions Code [sections] 361.2 and 362.4 that they are safe in
the father’s care, and, therefore, I am placing the children in
Father’s care, removing them from Mother.”
The court entered a juvenile custody order granting sole
physical custody to Father with Father providing the primary
residence. However, the court ordered joint legal custody with
Father “to have tie-breaking authority if [Mother] is not willing,
not able or not cooperative in making legal decisions, the Father
can make them solely without Mother. But he still must at least
take the step of consulting Mother and informing Mother about
legal decisions.” The court added, “The reason for this order and
the order that Mother will have monitored visits of six hours a
week is because Mother needs to complete a full drug abuse
treatment program with random testing, a domestic violence
11
program for victims, parenting class[es] and individual
counseling. Those are the case programs that the mother would
have to complete in order to show she can amend and modify this
custody order in family court.”
Mother timely appealed.3
DISCUSSION
“‘Typically, once the child has been adjudged to be a
dependent child pursuant to section 360, subdivision (d), the
juvenile court determines what services the child and family need
to be reunited and free from court supervision. [Citations.] The
court then sets a review hearing, which must be held within six
months, to evaluate the family’s circumstances and decide
whether continued dependency jurisdiction is necessary.’
However, because the Legislature has ‘grant[ed] the juvenile
court broad authority to enter orders to protect a dependent child
and to reunite the family and terminate jurisdiction as quickly as
possible’ [citation], the court has discretion at the close of the
disposition hearing ‘to terminate dependency jurisdiction when
the child is in parental custody and no protective issue remains.’”
(In re C.S. (2022) 80 Cal.App.5th 631, 635-636, fn. omitted;
accord, In re D.B. (2020) 48 Cal.App.5th 613, 624.)
An order terminating jurisdiction is reviewed for an abuse
of discretion. (In re C.S., supra, 80 Cal.App.5th at pp. 635, 637;
3 Mother states in her notice of appeal that she is appealing
the jurisdiction and disposition orders, but in her opening brief
she only contends the juvenile court abused its discretion in
terminating jurisdiction at the disposition hearing.
12
In re D.B., supra, 48 Cal.App.5th at p. 624; In re C.W. (2019)
33 Cal.App.5th 835, 863 [“We review a juvenile court’s decision to
terminate jurisdiction and to issue an accompanying exit custody
order for abuse of discretion, and may not disturb such rulings
unless the court made an ‘“‘“arbitrary, capricious, or patently
absurd determination.”’”’”].)
The juvenile court did not abuse its discretion. Esmeralda
and Anthony were placed in danger by Mother’s abuse of
marijuana and methamphetamine, as well as Mother’s provision
of marijuana to Esmeralda. Mother tested positive for marijuana
metabolites on May 6 and June 17, 2021, and methamphetamine
and amphetamine on June 24 and 28, 2021. At the time of the
disposition hearing, Mother had not enrolled in a substance
abuse program or any other services that the court had ordered.
Further, Mother continued to deny she provided Esmeralda with
marijuana or smoked marijuana in Anthony’s presence. On
appeal, Mother claims “neither parent, nor [Esmeralda] could
explain the cause or source” of Esmeralda’s May 2021 positive
test for marijuana and opiates. But 12-year-old Esmeralda
disclosed Mother introduced her to marijuana by providing her
the drug at Mother’s home in the summer of 2020. And Mother,
Hazel, and Esmeralda smoked marijuana together, sometimes in
Anthony’s presence. When the social worker asked Esmeralda if
Mother had offered marijuana to Anthony, Esmeralda answered
not “‘yet’” because Mother said he was too young. The juvenile
court was rightly concerned that Mother, who supplied Hazel and
Esmeralda with marijuana, would offer marijuana to Anthony
when he was older. In addition, Mother instructed Esmeralda
and Anthony to tell the social worker that Mother and Esmeralda
did not use marijuana in the home.
13
By awarding Father sole physical custody and limiting
Mother to monitored visits, the juvenile court protected the
children from harm. Father was nonoffending, and as the court
noted, he was very protective of the children. Father had the
children tested for drugs because he suspected Mother was using
drugs and he was worried Mother had exposed the children to
drugs. Father recognized he needed to keep the children safe
from Mother and acknowledged Esmeralda needed to continue
individual counseling and behavioral therapy. Thus, court
supervision was not necessary to protect the children or ensure
Esmeralda received services.
Mother contends the juvenile court should have continued
jurisdiction to provide Mother with services. But Mother admits
she was not entitled to family reunification services because the
children remained with a custodial parent. (See § 16507,
subd. (b) [“[f]amily reunification services shall only be provided
when a child has been placed in out-of-home care, or is in the care
of a previously noncustodial parent under the supervision of the
juvenile court”]; In re C.S., supra, 80 Cal.App.5th at p. 636
[mother was not entitled to reunification services where child
remained with custodial parent]; In re Destiny D. (2017) 15
Cal.App.5th 197, 212 [father was not entitled to reunification
services because the child remained with custodial parent].)
Mother alternatively argues the juvenile court should have
continued jurisdiction and ordered the Department to provide her
with enhancement services, including a substance abuse
program. “‘“Enhancement” services are “not designed to reunify
the child with that parent, but instead to enhance the child’s
relationship with that parent by requiring that parent to address
the issues that brought the child before the court.”’” (In re C.S.,
14
supra, 80 Cal.App.5th at pp. 636-637; In re Destiny D., supra,
15 Cal.App.5th at pp. 212-213.) “An order for enhancement
services is subject to the court’s discretion.” (C.S., at p. 637;
Destiny D., at p. 213; see § 362, subd. (a).) At the May 19, 2021
detention hearing, the juvenile court ordered Mother to
participate in a substance abuse program, weekly random drug
testing, parenting classes, a domestic violence for victims
program, and individual counseling. But as of July 2021, Mother
still had not yet enrolled in any services. Moreover, Mother
continued to use drugs after the detention hearing, testing
positive for methamphetamine and amphetamine on June 24 and
28, 2021.
Further, the juvenile custody order provided the same six
hours of monitored visits the court had ordered at the detention
hearing. In entering the juvenile custody order, the juvenile
court made clear it intended that Mother could seek to modify the
custody order in family court once she completed a full drug
abuse treatment program with random testing and the other
required classes and counseling. Given that Father was
nonoffending, the children were safe in his care and receiving
necessary therapy, and Mother still had not enrolled in a
substance abuse program or other services (but continued to have
that opportunity), it was not an abuse of discretion for the court
to terminate dependency jurisdiction.
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DISPOSITION
The order terminating dependency jurisdiction is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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