In re X.O. CA2/5 ( 2023 )

Filed 3/6/23 In re X.O. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re X.O., A Person Coming Under B317932
the Juvenile Court Law.
___________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 17CCJP01779C)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.D.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Lisa A. Brackelmanns, Judge Pro Tempore. Affirmed.
Robert McLaughlin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Deputy County
Counsel, for Plaintiff and Respondent.
The juvenile court assumed dependency jurisdiction over
X.O. (Minor) when she was less than a year old. The court found
true allegations that Minor was at risk of harm from C.D.’s
(Mother’s) history of substance abuse and ordered Mother to
submit to random drug testing. Mother appeals the jurisdiction
finding and associated disposition order, asking us to decide
whether the former was supported by substantial evidence and
whether the latter was an abuse of discretion.
I. BACKGROUND
A. The Dependency Investigation and Petition
In December 2020, two days after her premature birth, the
Los Angeles County Department of Children and Family Services
(the Department) opened an investigation into Minor’s well-being
due to concerns over Mother’s substance abuse. The
Department’s concerns arose not from Mother’s toxicology results
at the time of Minor’s birth, which were negative, but from
Mother’s prior child welfare history.1
1
Approximately three years earlier, Minor’s half-sister K.D.
was declared a dependent of the juvenile court due to a sustained
allegation of general neglect arising out of Mother’s failure to
make a plan for the child’s safety after Mother was incarcerated
with an unknown release date. In that prior proceeding, Mother
admitted she had a long history of marijuana use (beginning
when she was 14 years old) and used marijuana during her
pregnancy with K.D.; Mother was ordered to drug test as part of
her reunification plan but did not comply. A year after assuming
jurisdiction over K.D., the juvenile court also assumed
jurisdiction over Minor’s half-brother W.P. due to sustained
allegations of substance abuse by Mother and the child’s father.
2
After being released from the hospital following Minor’s
birth, Mother was interviewed at home by a Department social
worker. Mother denied any current drug use, advised she
stopped using marijuana six months earlier after learning she
was pregnant with Minor, and agreed to submit to a drug test
following the interview. The results from the test were
inconclusive because the sample was diluted. During a follow-up
telephone interview with the social worker, Mother could not
offer an explanation for the diluted test result but re-affirmed she
was not using any drugs, including marijuana, and was willing to
test as needed. Following a missed drug test, Mother agreed
during a subsequent home visit to submit to an on-demand drug
test later that same day, the results of which were negative.
The social worker also interviewed Minor’s father D.O.
(Father), the maternal grandmother, and the paternal
grandmother with whom the family was then living. Father
denied that either he or Mother used drugs. After the results
from a drug test for Father were initially found inconclusive and
then revised to be positive for marijuana, he conceded he used
marijuana but smoked it only outside the home. The maternal
grandmother reported Mother smoked marijuana in the past but
she no longer used marijuana. The paternal grandmother
reported she did not suspect drug use by either of Minor’s
parents.
At the time of W.P.’s birth, Mother tested positive for opioids and
W.P.’s meconium tested positive for marijuana. Ultimately,
Mother failed to reunite with both of Minor’s half-siblings and the
maternal grandmother was appointed their legal guardian.
3
Although the Department found Minor to be in good health
and well-taken care of and recommended she remain in her
parents’ care, it nonetheless assessed her to be at “high” risk of
abuse or neglect.
In February 2021, the Department filed a two count
petition asking the juvenile court to assume jurisdiction over
Minor under Welfare and Institutions Code section 300,
subdivisions (b)(1) and (j).2 The petition alleged in the
subdivision (b) count that Minor was at substantial risk of
suffering physical harm or illness due to her young age and
Mother’s history of abusing opioids and marijuana. The
subdivision (j) count asserted Minor was at risk of harm in light
of Mother’s inability to care for W.P. as a result of her history of
substance abuse. At the detention hearing, the court found the
Department had made a prima facie case for dependency
jurisdiction, released Minor into her parents’ care under the
Department’s supervision, and ordered various family
preservation services for both parents, including drug testing.
B. Jurisdiction and Disposition
In advance of the jurisdiction hearing, a Department
investigator conducted a telephone interview of Mother during
which she re-affirmed she was not currently using any
2
Not long after the filing of the dependency petition, the
Department learned there had been domestic violence between
Mother and Father (in Minor’s presence) that left Mother with a
black eye. No amended, supplemental, or subsequent
dependency petition was filed as a result of this incident.
Undesignated statutory references in this opinion are to
the Welfare and Institutions Code.
4
substances. After Mother stated she was not currently
undergoing any drug testing but was willing to begin, the
investigator asked if she would submit to an on-demand test later
that day. After repeatedly confirming Mother’s availability and
commitment to test that day at a particular site, the investigator
submitted a referral to the test facility. Two hours later, Mother
telephoned the investigator and advised she would not be able to
test due to a lack of transportation.
After Mother missed this scheduled drug test, the
Department revised its position concerning the dependency
proceedings. The Department initially recommended the
dependency petition be dismissed on the condition that Mother
and Father submit to weekly drug testing (among other things),
but the Department now urged the juvenile court to sustain the
petition as alleged.
In view of Mother’s missed test and the Department’s
renewed position that dependency jurisdiction was warranted,
the juvenile court continued the jurisdiction hearing. Because
Minor was a newborn, the court ordered her parents to provide
four clean consecutive drug tests before a conditional dismissal of
the dependency petition could be re-offered as a resolution of the
proceedings. Between April 8 and May 7, 2021, Mother missed
each of her five scheduled drug tests.
In May 2021, the juvenile court continued the jurisdiction
hearing once more to allow the Department to investigate a
report of Mother moving out of the family home due to domestic
violence between her and Father. At the same time, the court
ordered Mother and Father to submit to drug testing as a
condition of Minor’s continued release into their care.
5
Between May 12 and June 21, 2021, Mother was a “no
show” at the seven tests scheduled during that period. At a
hearing on July 14, 2021, the juvenile court admonished Mother
that she needed to submit to drug testing and test negative as a
condition of Minor’s continued release into her custody and care.
Despite the court’s admonition, Mother continued to miss
scheduled drug tests. Between July 1 and August 31, 2021, she
missed nine out of 10 scheduled tests. The results from the one
completed test were negative for the presence of drugs.
After Mother moved out of the home where she had been
living, the paternal grandmother reported concerns to the
Department about both parents and their care of Minor. Among
other things, the paternal grandmother said Mother dropped off
Minor at the paternal grandmother’s home one weekend
inadequately dressed (no pants or blanket covering his legs) and
without adequate provisions (food or clothing). In addition, the
paternal grandmother advised Mother had dropped Minor off
with her “at inappropriate times, around 1 am,” was “often”
leaving Minor in the care of friends or others, and was not being
truthful to the Department.
In the fall of 2021, the juvenile court reminded Mother once
more of the need to submit to drug testing and, to facilitate her
testing, it ordered the Department to provide transportation
assistance and find a more convenient testing site, which the
Department did.3 Despite these measures, Mother was still a “no
3
The request for transportation assistance to facilitate drug
testing was made by Mother’s counsel at a hearing Mother did
not attend. Mother subsequently advised the Department that
she did not need transportation assistance because she did not
take the bus.
6
show” at the five drug tests scheduled between September 9 and
October 5, 2021. When asked to explain the missed tests, Mother
told a Department social worker she was not testing because she
had twice lost her identification card. To a Department
investigator, however, Mother gave a different explanation for
her missed tests: the testing center was closed. When the
investigator contacted the testing facility, she was advised the
center was open and had never been closed.
Although Mother missed 27 out of 28 scheduled drug tests
since the filing of the petition, during that same period she
completed a 12-week program for domestic violence and a 10-
week parenting course, as well as individual counseling.
The juvenile court ultimately held the jurisdiction hearing
in November 2021. Mother did not testify, interpose any
objections to the Department’s proffered evidence (its reports
submitted to the court during the course of the proceedings), or
offer any evidence of her own. After hearing argument from the
parties, the court sustained the petition as pled. The court found
jurisdiction was warranted because it was not confident Mother
was “leading a sober lifestyle.”
A week later, the juvenile court held a disposition hearing,
at which it released Minor into her parents’ care and ordered
various family maintenance services, including random or on-
demand drug testing for Mother. Mother did not object to the
testing requirement; instead, her attorney questioned only
whether the case plan should also provide for additional drug-
related services. In response, the court clarified that if Mother
missed a random or on-demand test or tested positive for drugs,
she would not necessarily be required to complete a full drug
rehabilitation program; rather, the Department would need to
7
seek and obtain a court order for Mother’s enrollment in such a
program.
II. DISCUSSION
There is sufficient evidence that dependency jurisdiction
under section 300, subdivision (j) was proper, and that obviates
the need to discuss the subdivision (b)(1) basis for jurisdiction
found by the juvenile court. (In re I.J. (2013) 56 Cal.4th 766, 773-
774 (I.J.); accord, In re Madison S. (2017) 15 Cal.App.5th 308,
328-329.) Because Minor’s half-brother W.P. was made a
dependent of the juvenile court due to Mother’s history of
substance abuse, Mother was ordered to submit to drug testing
following the filing of the petition on Minor’s behalf. Despite
being repeatedly reminded by the juvenile court of the necessity
to submit to weekly drug testing, Mother managed to do so only
once over the course of many months. In addition, she failed to
credibly explain why she was unable to drug test on a consistent
basis while simultaneously being able to complete other family
preservation programs. The many missed tests and implausible
explanations, combined with the prior jurisdiction finding for
Minor’s half-brother and evidence that Minor was not being
properly cared for, adequately establishes a substantial risk of
serious physical harm to Minor, who was a child of “tender years”
at the time of the adjudication hearing.
As for Mother’s contention that the juvenile court abused
its discretion by ordering her to submit to random drug testing,
she forfeited the argument by not objecting to the drug testing
order during the proceedings below. The result would also be the
same even if Mother had timely objected to the order: the
requirement for drug testing was eminently reasonable on this
record.
8
A. Substantial Evidence Supports the Jurisdiction
Finding
Section 300, subdivision (j), authorizes a juvenile court to
assume dependency jurisdiction over a child when the following
two requirements are met: “[t]he child’s sibling has been abused
or neglected, as defined in subdivision [(b)(1) or other
subdivisions],[4] and there is a substantial risk that the child will
be abused or neglected, as defined in those subdivisions.” (§ 300,
subd. (j).) Section 300, subdivision (j) states courts “shall”
consider the following when deciding whether to assert
jurisdiction: “the circumstances surrounding the abuse or neglect
of the sibling, the age and gender of each child, the nature of the
abuse or neglect of the sibling, the mental condition of the parent
or guardian, and any other factors the court considers probative
in determining whether there is a substantial risk to the child.”
(§ 300, subd. (j).)
“The broad language of [Section 300,] subdivision (j) clearly
indicates that the trial court is to consider the totality of the
circumstances of the child and his or her sibling in determining
whether the child is at substantial risk of harm, within the
meaning of any of the subdivisions enumerated in subdivision (j).
The provision thus accords the trial court greater latitude to
exercise jurisdiction as to a child whose sibling has been found to
4
Under subdivision (b)(1), a child is a dependent child 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 . . .[¶] [t]he failure or inability of his or her parent or guardian
to adequately supervise or protect the child . . . .” (§ 300, subd.
(b)(1)(A).)
9
have been abused than the court would have in the absence of
that circumstance.’ [Citation.]” (I.J., supra,56 Cal.4th at 774.)
“‘In reviewing the jurisdictional findings . . . , we look to see
if substantial evidence, contradicted or uncontradicted, supports
them.’” (In re R.T. (2017) 3 Cal.5th 622, 633.) “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. [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].” (I.J., supra, 56 Cal.4th at 773,
internal quotation marks and citations omitted.)
Dependency jurisdiction over Minor was proper pursuant to
subdivision (j) because it was undisputed W.P. was made a
dependent of the juvenile court due to Mother’s substance abuse
and, as we next detail, substantial evidence supported the
conclusion that Minor was at risk of being abused or neglected for
the same reason.
Minor was an infant at the time of the adjudication
hearing. Children of “tender years,” like Minor, face “an inherent
risk to their physical health and safety” if they are not
adequately cared for or supervised (In re Rocco M. (1991) 1
Cal.App.4th 814, 824), which regular, ongoing use of marijuana
can inhibit. (In re Christopher R. (2014) 225 Cal.App.4th 1210,
1219-1220 [holding juvenile court was justified in assuming
jurisdiction over three-month-old child in view of father’s chronic
use of marijuana]; see also id. at 1219 [children six years old or
younger are generally considered to be of “tender years”].) There
was evidence here from the paternal grandmother that Mother
10
was indeed neglecting to care for Minor properly: most
prominently, the 1:00 AM drop-offs and the drop-off without
proper clothes or food, but also the statements regarding Mother
frequently leaving the young child in the care of others. (See,
e.g., In re Natalie A. (2015) 243 Cal.App.4th 178, 185 [neglect is
“one of the most salient manifestations of parental substance
abuse”] (Natalie A.).)
In addition, despite being repeatedly advised by the
juvenile court of the importance of submitting to drug testing,
Mother missed 27 out of 28 scheduled drug tests. Mother’s
proffered explanations for her missed drug tests were either
suspicious or demonstrably false. The juvenile court could
reasonably infer Mother was acting deliberately to avoid
producing a positive test result. (See, e.g., In re Noah G. (2016)
247 Cal.App.4th 1292, 1303-1304 [where mother missed all 11
drug tests after testing positive, “the juvenile court could
reasonably conclude that common sense suggests a parent who
consistently fails to appear for drug tests does so because of a
consciousness of guilt”], disapproved of on other grounds by In re
Caden C. (2021) 11 Cal.5th 614, 637, fn. 6; In re Kadence P.
(2015) 241 Cal.App.4th 1376, 1384 [mother’s history of marijuana
and methamphetamine abuse, her refusal to take drug tests, and
her provision of diluted samples when she did appear at a facility
to test constituted substantial evidence supporting dependency
jurisdiction].) Mother also had a history of testing noncompliance
and substance abuse in dependency proceedings concerning
Minor’s half-siblings, who were just two years (W.P.) and three
years (K.D.) older than Minor.
The evidence was accordingly sufficient to exercise
dependency jurisdiction under section 300, subdivision (j).
11
Mother’s reliance on several cases in which reviewing courts held
there was not a sufficient link between a parent’s substance
abuse and a risk to a child’s safety under section 300, subdivision
(b) (e.g., In re Destiny S. (2012) 210 Cal.App.4th 999, 1003-1005
(Destiny S.) [mother’s drug use, without any indication of child
abuse or neglect, insufficient to support jurisdiction over 11-year-
old]; In re Rebecca C. (2014) 228 Cal.App.4th 720, 727 (Rebecca
C.) [mother’s history of substance abuse insufficient to support
jurisdiction over a teenage daughter]), does nothing to undermine
this conclusion.5 Here we discuss a jurisdiction finding under
section 300, subdivision (j), which affords juvenile courts greater
latitude. (I.J., supra, 56 Cal.4th at 774.) Additionally, we are
concerned in this case with a very young child (Minor was 10
months old at the time of the jurisdiction hearing)—not, for
instance, the pre-teen and teen children at issue in Destiny S.
and Rebecca C. Further, as already detailed, there is evidence of
parental neglect in this case, as related by the paternal
grandmother.
5
Mother’s reliance on Jennifer A. v. Superior Court (2004)
117 Cal.App.4th 1322 (Jennifer A.) is similarly unavailing. In
that case, the Court of Appeal held a mother’s missed drug tests,
without more, were not substantial evidence of a risk of harm to
her two children, one of whom was an infant at the time
dependency proceedings were inaugurated. (Id. at 1326, 1346.)
The mother in Jennifer A. missed nine drug tests, but completed
“about 84 drug-free tests” over the course of 11 months. (Id. at
1343.) In contrast, over the course of nine months, Mother
completed only one scheduled test while missing 27.
12
B. Mother Forfeited Her Challenge to the Random Drug
Testing Order and the Challenge Is Not Well Taken
Regardless
As a general rule, the failure to object in the juvenile court
forfeits a parent’s right to pursue an issue on appeal. (In re S.B.
(2004) 32 Cal.4th 1287, 1293 & fn. 2 (S.B.); accord, In re N.O.
(2019) 31 Cal.App.5th 899, 935 [“‘A party forfeits the right to
claim error as grounds for reversal on appeal when he or she fails
to raise the objection in the trial court. [Citations.]
Forfeiture . . . applies in juvenile dependency litigation and is
intended to prevent a party from standing by silently until the
conclusion of the proceedings’”].) Although an appellate court has
the discretion to excuse such forfeiture, it should do so “rarely
and only in cases presenting an important legal issue.” (S.B.,
supra, at 1293.)
Here, Mother did not object to the juvenile court’s
dispositional order for random/on-demand drug testing; her
attorney merely questioned whether Mother’s case plan should
also include a full rehabilitation program. As a result, Mother
forfeited her challenge to that order on appeal.
Even if Mother’s argument had not been forfeited, it still
lacks merit. “If a child is adjudged a dependent child of the court
on the ground that the child is a person described by Section 300,
the court may make any and all reasonable orders for the care,
supervision, custody, conduct, maintenance, and support of the
child . . . .” (§ 362, subd. (a).) “The program in which a parent or
guardian is required to participate shall be designed to eliminate
those conditions that led to the court’s finding that the child is a
person described by Section 300.” (§ 362, subd. (d).) “‘The
juvenile court has broad discretion to determine what would best
13
serve and protect the child’s interest and to fashion a
dispositional order in accordance with this discretion.
[Citations.]’” (In re Corrine W. (2009) 45 Cal.4th 522, 532.) On
appeal, the court’s determination of what is in the child’s best
interests cannot be reversed absent a “‘clear abuse of discretion.’
[Citation.]” (Ibid.; accord, In re D.P. (2020) 44 Cal.App.5th 1058,
1071.)
In view of the sustained allegations that gave rise to the
juvenile court’s exercise of dependency jurisdiction, namely
Mother’s history of substance abuse, the dispositional order
directing Mother to submit to random/on-demand drug testing
was both reasonable and designed to eliminate conditions that
led to the court’s exercise of dependency jurisdiction. (Natalie A.,
supra, 243 Cal.App.4th at 186-187 [affirming dispositional order
ordering father to participate in drug testing and a treatment
program because “the evidence established that father’s
marijuana abuse posed a substantial risk to the children in light
of their very young ages. And, while father continues to deny he
currently uses marijuana, he has repeatedly failed to submit to a
drug test or to complete treatment for his past and current
substance abuse issues. On this record, the juvenile court
reasonably concluded that drug testing and treatment programs
were necessary to eliminate the conditions that led to the
children’s dependency status”].)
14
DISPOSITION
The jurisdiction findings and disposition order are
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
15