In re J.M. ( 2019 )

Filed 10/3/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re J.M. et al., Persons Coming B293382
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 17CCJP00694)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Appellant,
v.
A.S. et al.,
Defendants and Respondents;
J.M., a Minor, etc., et al.,
Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Julie Fox Blackshaw, Judge. Reversed.
Office of the County Counsel, Mary C. Wickham, County
Counsel, Kristine P. Miles, Assistant County Counsel, and
Veronica Randazzo, Deputy County Counsel, for Plaintiff and
Appellant Los Angeles County Department of Children and
Family Services.
Patricia G. Bell, under appointment by the Court of Appeal,
for Appellants J.M. and H.M.
Johanna R. Shargel, under appointment by the Court of
Appeal, for Defendant and Respondent A.S.
Jacques Alexander Love, under appointment by the Court
of Appeal, for Defendant and Respondent T.M.
2
A.S. (Mother) and T.M. (Father) have two children, three-
year-old J.M. and two-year-old H.M. (collectively, the Minors).1
The Los Angeles Department of Children and Family Services
(the Department) filed a dependency petition alleging Mother and
Father abused drugs and engaged in domestic violence. Shortly
thereafter, Mother absconded with the Minors and their
whereabouts were unknown for roughly nine months. When
Mother eventually surrendered the Minors to a maternal
relative, the juvenile court held a jurisdiction hearing and
concluded it must dismiss the petition because there was, by
then, a lack of evidence of current risk of harm to the Minors.
This court issued a writ of supersedeas to stay the juvenile
court’s dismissal order and we now consider whether substantial
evidence supports the court’s decision to decline to assume
jurisdiction over the children.
I. BACKGROUND
A. Initial Investigation
The family came to the Department’s attention following a
referral alleging Mother and Father were physically fighting each
other, selling drugs, and yelling and cursing at the Minors.
A Department social worker and a public health nurse
visited Mother’s residence a few days later. Father was inside
getting dressed when they arrived. Mother told the social worker
that Father did not live in the home and was on his way to work.
The social worker asked Father if he would participate in an
1
These were the children’s ages when dependency
proceedings commenced.
3
interview, but Father ignored the question, kissed Mother, and
left.
So rebuffed, the social worker interviewed only Mother.
She said she had been a dependent child herself—entering “the
system” at one year old and never reunifying with her parents.
Mother admitted she yells at the Minors but denied cursing at
them. Mother also denied fighting with Father; she asserted he
“‘just leaves’” when conflicts arise between the two of them.
When asked about drug use, Mother initially denied it, but she
later admitted to smoking marijuana, according to her, “‘[m]aybe
like once a week’” outside of the home and not in the presence of
the Minors. Mother reported J.M. had asthma (assertedly
without an attack in two years) and H.M. had a heart murmur
for which she needed to be seen by a cardiologist every six
months.
A Department social worker contacted Father a few days
later and asked if he would meet to discuss the allegations.
Father screamed at the social worker, asking what he had to do
with the situation. Father stated he lived in his car, did not live
with Mother, and “‘just come[s] over and do[es] what I have to do
with my kids.’” He admitted to smoking marijuana but he denied
smoking while the Minors were in his care or while he is in
Mother’s home. Father admitted to being on criminal probation
for domestic abuse but denied there had been any recent
domestic violence between him and Mother.2
2
The Department social worker later spoke to Father’s
probation officer who stated Father was given five years of formal
probation and still needed to complete domestic violence classes.
4
The Department social worker spoke to Mother several
more times before filing a dependency petition. During one
conversation, the social worker asked Mother if she was willing to
take a drug test. Mother said she had “‘no time for this’” and
screamed at the social worker. During another conversation,
Mother stated she knew there was a restraining order prohibiting
contact between her and Father but said she was working with
Father to get the order lifted. When the social worker told
Mother the Department had received more than one call
regarding her and Father having arguments and possible
physical altercations, Mother stated those allegations were false,
she and Father do not fight, and “‘all this stuff is a
misunderstanding.’” Mother admitted there had been conflict
between her and Father in the past, but she said it was because
they were young at the time.
The social worker also spoke to the Minors’ maternal
grandmother, with whom Mother had been building a
relationship. Maternal grandmother stated Mother and Father
did not have any problems and she was not concerned for the
Minors.
B. Mother Absconds after the Department Files a
Petition and Obtains a Removal Order
In September 2017, the Department filed a petition in
juvenile court alleging the Minors were children described by
Welfare and Institutions Code section 300, subdivision (a)
(substantial risk of serious physical harm inflicted
nonaccidentally by a parent) and subdivision (b) (substantial risk
of serious physical harm from a parent’s failure or inability to
5
adequately supervise or protect the child).3 The petition alleged
Mother and Father had a history of engaging in violent
altercations in J.M.’s presence and specifically referenced a
violent altercation that occurred in April 2015 when Mother was
pregnant with H.M. It also referenced Mother and Father’s
violation of the criminal restraining order. The petition
additionally alleged Mother and Father were current abusers of
marijuana, which rendered them incapable of providing regular
care for the Minors, who were of such tender age that they
require constant care and supervision.
At the initial detention hearing held in connection with the
filed petition, the juvenile court ordered the Minors released to
Mother’s care. Roughly two weeks later, Mother missed an on-
demand drug test. She appeared for a drug test a few days later,
and tested positive for amphetamine, methamphetamine,
cannabinoids, and cocaine metabolite. A Department social
worker informed Mother of the positive results and asked Mother
about her drug use. Mother denied using amphetamine,
methamphetamine, or cocaine, and she attempted to explain
those positive results away by saying she had taken pain
medication and an ecstasy pill the day before the test.4 Mother
did admit to using marijuana, but she maintained she uses it
only occasionally, and only when the children are not there.
3
Undesignated statutory references that follow are to the
Welfare and Institutions Code.
4
A Department social worker spoke to an employee at the
testing center who stated taking an ecstasy pill would not result
in a positive test for amphetamine, methamphetamine, and
cocaine.
6
The Department thereafter sought a removal order based
on Mother’s drug use—as evidenced by multiple missed drug
tests, her positive test for high levels of illicit drugs, her denial of
drug use indicated by test results, and her admission that she
had taken ecstasy. The juvenile court approved the Department’s
request and issued a removal order on November 1, 2017.
The Department attempted to detain the Minors the next
day, but the social worker was unable to contact Mother via her
cell phone and Mother was not home when Department social
workers visited to serve the removal warrant. Mother later met
the social workers at a Department of Public Social Services
office. The social workers invited Mother into an interview room.
Mother asked if the Department was going to take the Minors.
When the social workers said yes and explained a removal
warrant had issued for the children, Mother got up from her seat,
grabbed the children, and left the building. The social workers
followed Mother into the parking lot and tried to talk to her.
Mother put the Minors in car seats and said “‘I am not giving up
my kids just like that. You are not going to do what they did to
my mom. You will not do this to me without my family.’” She
then drove off without buckling J.M.’s seat belt. And for the
following nine months, Department personnel would be unable to
determine where she and the children were living.
C. The Amended Petition and the Jurisdiction Report
The Department filed an amended dependency petition
shortly after Mother left with the children that added allegations
regarding Mother’s positive test for amphetamine,
methamphetamine, cocaine, and marijuana. The Department
7
requested the Minors be detained at large and the juvenile court
issued protective custody warrants.
Notwithstanding Mother’s decision to abscond with the
Minors, the Department prepared and submitted to the juvenile
court a jurisdiction and disposition report in mid-November 2017.
The report indicated that although the Department did not know
where Mother and the Minors were living, a Department
investigator managed to speak by phone with Mother about the
case.
Regarding the domestic violence allegations, Mother asked
why the Department was “‘bring[ing] something up from the
past,’” stating the Minors were not around “‘when we were going
through something.’” Mother also stated the restraining order
expired before J.M. was born, and that she and Father love each
other. Regarding the allegations that Mother abused drugs,
Mother stated she was “‘chilling with a friend’” when she “‘was
slipped something.’” Mother said she has a medical marijuana
card and uses marijuana to help her eat. Regarding the
allegations that Father abuses marijuana, Mother stated she was
sure he smokes, but she also said she had not seen him in three
months.
A Department investigator also spoke to Father by phone.
He denied hitting Mother, denied knowing whether Mother
abused drugs, and stated the Department could not prove he had
used marijuana because he had not submitted to drug testing.
Father was rude and verbally aggressive, and he said he did not
want any notice or any documents related to the case.
The juvenile court held a hearing in late November 2017.
Mother was not present (she was still at large with the Minors)
but Father was present in custody (he had been returned to
8
prison for a reason the record does not disclose). The juvenile
court made a visitation order for Father and inquired whether he
knew the whereabouts of Mother and the Minors. Father claimed
not to know. After the hearing, the Department continued
making efforts to locate Mother and the Minors, but it was
unable to do so, though it managed at least one more brief phone
contact with Mother.
D. The Children Are Returned and the Proceedings
Resume
The Department did not obtain custody of the Minors until
August 13, 2018, when a maternal relative told a social worker
that she had custody of the Minors and would bring them to
court. The juvenile court held a hearing that same day to recall
the outstanding warrants. Mother was present at the hearing
and the court confirmed a notice address for Mother, telling her
“[i]f a notice is sent to this address about a court hearing, you will
be expected to come to court.” Mother’s response was, “Yes,
ma’am.” The juvenile court also ordered Mother to be back in
court for an adjudication hearing on October 18 and Mother said,
“I will be here.” The Minors were placed with their maternal
aunt.
The Department submitted an updated jurisdiction report
in advance of the October 18, 2018, hearing. The body of the
report lists four drug tests for Mother, three of which were no
shows and one of which was the positive test on October 13, 2017,
alleged in the amended petition. However, there were nine drug
test reports attached to the jurisdiction report: the positive report
for amphetamine, methamphetamine, cannabinoids, and cocaine
metabolite on October 13, 2017; a positive report for cannabinoids
9
on October 31, 2017; three “no show” reports from the period
before Mother left with the Minors (August 4, 2017, August 18,
2017, and October 11, 2017); and four “no show” reports from test
dates after Mother and the Minors had been located and
appeared in court (August 24, 2018, August 27, 2018, September
5, 2018, and September 14, 2018). The updated jurisdiction
report revealed the Department had been unable to interview
Mother or Father since the Minors’ return despite unannounced
visits to last known addresses and multiple attempts at phone
contact.
A Department employee interviewed the Minors’ maternal
aunt regarding the allegations in the petition. She said Mother
used to tell her she and Father had gotten into physical
altercations, but maternal aunt had not observed any marks or
bruises. The maternal aunt also said Mother smokes marijuana
but she had never seen Mother use drugs around the children.
The maternal aunt was then living with the Minors in the
apartment the children had previously inhabited with Mother.5
The Department investigator spoke to J.M. (then 4 years
old) during the visit.6 When asked when the last time he saw his
mother was, J.M. said “‘she went to the store.’” The maternal
aunt claimed she told the Minors that Mother was at work or at
the store and they did not know she wasn’t actually living there.
5
The room in which the maternal aunt was sleeping did not
have a bed, and the maternal aunt reported she was sleeping on a
blanket on the floor. The room where Mother and Father were
previously living had a neatly made bed and an air mattress.
6
H.M. had just turned three years old at the time and was
not interviewed.
10
J.M. denied seeing Mother and Father fight, and denied being
fearful of either.
E. The 2018 Jurisdiction Hearing
The jurisdiction hearing finally went forward on October
18, 2018. Neither Mother nor Father were present.
The juvenile court stated it was troubled “by the fact that
the [domestic violence] allegations are old,” noting “this family
was at-large for a period of time, which is why they are old, but I
need to find current risk today . . . .” The court acknowledged
Mother had tested positive for “a lot of drugs” in October 2017,
but said it still needed to find there was a nexus to the Minors’
care. The court asked counsel, “[w]hy can’t we have evidence of
current risk?” Counsel for the Department and the Minors
responded the reason there was not more evidence of current risk
to the children was because “Mother . . . A.W.O.L.’d with the
children for the year” and, in the weeks after being located, the
parents had been uncooperative and failed to respond to the
social worker’s efforts to contact them.
The court decided it would dismiss the petition. It
explained its reasoning on the record: “I can’t sustain it under
the law. I need current risk. I need a nexus to the care of the
children. Unfortunately, if it were more recent violence and we
had evidence that there was ongoing violence, perhaps it would
be sustainable, but I don’t have that evidence. The Mother’s drug
use, the one positive test, is a year ago. I really don’t know what
the situation is with her. Just because she has not been
cooperative with the Department does not create any kind of
presumption that she is currently using drugs. And then,
secondly, under the law, I need current risk and I need evidence
11
the children are not being cared for. I don’t have it.” The
Department and the Minors requested a stay, which the juvenile
court denied.
Shortly thereafter, the Department filed a petition for
supersedeas and requested an immediate stay of the dismissal
order. This court granted an immediate stay and then granted
the petition for writ of supersedeas, which stayed the court’s
order dismissing the petition pending the resolution of this
appeal.
II. DISCUSSION
There are many cases holding that when a dependency
petition alleges jurisdiction under section 300, subdivision (b)(1)
based solely on risk of harm to a minor (rather than a harm
already suffered), a juvenile court must find the risk of harm
exists at time of the jurisdiction hearing to take jurisdiction over
the minor. (See, e.g., In re N.S. (2016) 245 Cal.App.4th 53, 62
[citing cases].) Here, the juvenile court found there was
insufficient evidence of such a “current” risk because most of the
evidence in the record concerned events that occurred over a year
before, i.e., before Mother absconded with the Minors in violation
of the court’s removal order. The reason why the juvenile court
erred in so finding can be stated simply: a parent cannot use the
“at the time of the hearing” rule as a sword, rather than a shield.
As we shall explain, a court errs when it dismisses a petition for
lack of sufficient evidence of current risk when the reason why
such evidence is lacking is because a parent absconded with her
children and wrongfully prevented the Department from
monitoring their welfare.
12
“Section 300, subdivision (b)(1), authorizes a juvenile court
to exercise dependency jurisdiction over a child if the ‘child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of the failure or
inability of his or her parent . . . to adequately supervise or
protect the child, or . . . by the inability of the parent . . . to
provide regular care for the child due to the parent’s . . . mental
illness, developmental disability, or substance abuse.’ (§ 300,
subd. (b)(1).)” (In re L.W. (2019) 32 Cal.App.5th 840, 848.) A
dependency court is not required to “wait until a child is seriously
abused or injured to assume jurisdiction and take steps necessary
to protect the child.” (In re Christopher R. (2014) 225
Cal.App.4th 1210, 1216 (Christopher R.).) Where jurisdictional
allegations are based solely on risk to the child, and not on past
injury, a juvenile court ordinarily determines whether a
substantial risk of harm exists at the time of the jurisdiction
hearing. (E.g., In re Yolanda L. (2017) 7 Cal.App.5th 987, 993; In
re T.V. (2013) 217 Cal.App.4th 126, 133; In re J.K. (2009) 174
Cal.App.4th 1426, 1435.)
The juvenile court in this case issued an order to remove
the Minors from Mother’s custody. That removal order was
predicated on the court’s express findings that there was
probable cause to believe the Minors were children described by
section 300 and probable cause to detain the Minors from Mother
because continuance of their care in her home would be contrary
to the children’s welfare. These findings, of course, were well
justified. Jurisdiction under section 300, subdivision (b) lies
where there is substantial risk a child will suffer serious physical
harm as a result of a parent’s drug abuse. Mother was the sole
primary caretaker of the Minors, both of whom were children of
13
“tender years.” (Christopher R., supra, 225 Cal.App.4th at p.
1219 [children six years old or younger are children of “‘tender
years’”].) One of Mother’s drug tests (before she absconded with
the Minors) showed she had amphetamine, methamphetamine,
and cocaine metabolite in her system. She admitted to smoking
marijuana, and tested positive for marijuana on two occasions.
Mother also missed several other drug tests in the first few
months of the dependency proceedings. Father admitted daily
marijuana use. Coupled with this evidence of drug use was
evidence the parents had failed to fulfill their obligation to ensure
the Minors had proper medical care: Though H.M. was supposed
to see a cardiologist every six months to monitor her heart
murmur, she had missed two consecutive appointments by the
time the Department began investigating the children’s welfare.7
As we have already detailed, Mother absconded with the
Minors after the removal warrants issued in November 2017—
and knowing the warrants had issued. The Minors’ whereabouts
were unknown for nine months thereafter, until August 13, 2018,
when Mother and the Minors made an appearance in court to
recall the outstanding warrants. The juvenile court held its
jurisdiction hearing just two months later, on October 18, 2018,
7
Cases cited by Mother and Father, In re Rebecca C. (2014)
228 Cal.App.4th 720 (Rebecca C.) and In re Drake M. (2012) 211
Cal.App.4th 754 (Drake M.), are easily distinguished from the
facts just recited. In Rebecca C., the minor was thirteen years
old, and thus not of so tender an age that drug abuse
presumptively constituted neglect. (Rebecca C., supra, at p. 727.)
In Drake M., the father demonstrated that though he used
marijuana regularly, he was never the child’s sole caretaker
while under the influence. (Drake M., supra, at p. 761.)
14
and during this intervening time, the Department’s attempt to
make an unannounced visit at Mother’s last known address was
unsuccessful, Mother and Father did not return multiple
telephone calls from the social worker, and the Department had
only limited interaction with the Minors themselves, who were
then being cared for by the maternal aunt. The parents’
attorneys nevertheless argued—and the juvenile court agreed—
the petition must be dismissed for lack of evidence of a current
risk of serious harm to the Minors. We review this decision for
substantial evidence. (In re Sheila B. (1993) 19 Cal.App.4th 187,
199; see also Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 436
[“[A]n order based upon improper criteria or incorrect
assumptions calls for reversal ‘“even though there may be
substantial evidence to support the court’s order”’”].)
We reject Mother and Father’s argument that the delay in
holding the jurisdiction hearing means the evidence of risk of
harm (most from the fall of 2017) was stale and did not warrant
jurisdiction by the time of the jurisdiction hearing in October
2018. Indeed, the position the parents take strikes us as a bit
rich. The reason why there was not more recent evidence is
because Mother absconded with the children so the dependency
proceedings could not continue. Whatever the merits of the “at
the time of the hearing” rule for assuming jurisdiction in a mine-
run dependency case, we are convinced that rule should not apply
to frustrate dependency jurisdiction when a parent’s wrongful
conduct is the cause of the delay. The rationale the juvenile court
accepted would encourage parents to defy court orders and resist
Department efforts to monitor the welfare of children knowing, if
they are able to delay long enough, the “at the time of the
hearing” rule will forestall a jurisdiction finding that otherwise
15
would have been wholly proper. That is not how the law works.
Rather, the juvenile court’s obligation in a case like this is to
assess whether the evidence that is before it—without any
consideration of the passage of time attributable to Mother’s
misconduct—warrants dependency jurisdiction. That is not what
the court did, and the order dismissing the petition is therefore
infirm.
Furthermore, the juvenile court was incorrect, in any event,
that there was no evidence of current risk. To the contrary, since
Mother’s return when the outstanding warrants were recalled,
Mother missed four additional drug tests.8 Those missed tests, of
course, cannot be viewed in a vacuum. Rather, they must be
viewed in the context of Mother’s prior positive test for
amphetamine, methamphetamine, cocaine, her two prior positive
tests for marijuana, her admission of drug use (marijuana and
ecstasy), and her decision to abscond with the Minors (one of
whom had asthma and another who had a heart murmur that
required regular checkups). Altogether, this was an unrebutted
basis to infer Mother’s drug use was continuing, inhibiting her
judgment, and interfering with her ability to care for and protect
8
Mother argues we can only consider one of her 2018 no
shows for drug testing because we cannot “revisit or reexamine
the evidence on appeal,” the juvenile court erroneously stated at
the jurisdiction hearing that Mother had only one missed test
after she and the Minors returned, and the Department did not
correct the court. Mother misreads the pertinent case law. While
we will not reweigh the evidence when reviewing jurisdiction
findings (In re I.J. (2013) 56 Cal.4th 766, 773), we will not ignore
evidence in the record simply because the parties and the
juvenile court overlooked it.
16
the Minors. Though they had obviously aged a year since the
filing of the petition, they were still young children of “tender
years” susceptible to a more acute risk of harm from drug abuse.
“The overarching goal of dependency proceedings is to
safeguard the welfare of California’s children.” (In re Nolan W.
(2009) 45 Cal.4th 1217, 1228.) Under the circumstances here, no
substantial evidence supports the juvenile court’s decision to
decline to assume jurisdiction over the Minors—effectively
returning them without supervision to parents who were not even
present for the jurisdiction hearing and had unaddressed drug
use problems.9
9
Because we resolve the appeal on these grounds, we need
not reach the Department and Minors’ arguments regarding the
disentitlement doctrine.
17
DISPOSITION
The juvenile court’s October 18, 2018, order dismissing the
petition is reversed, and the matter is remanded to the juvenile
court with directions to vacate its order dismissing the petition,
to make a new and different order assuming jurisdiction over the
Minors under section 300, subdivision (b)(1), and to hold a
hearing pursuant to section 358 at which it may consider the
Minors’ then-current circumstances when deciding what
disposition is appropriate.
CERTIFIED FOR PUBLICATION
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
18