In re M.L. CA4/2 ( 2022 )

Filed 8/8/22 In re M.L. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re M.L. et al, Persons Coming Under
the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E077599
Plaintiff and Respondent, (Super.Ct.Nos. J287762, J287763,
J287764, J287765 & J287766)
v.
OPINION
D.C. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander,
Judge. Affirmed.
Vincent W. Davis and Margarita Karasik-McGee for Defendant and Appellant
D.C.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and
Appellant, M.L.
1
Tom Bunton, County Counsel, and Svetlana Kauper, Deputy County Counsel, for
Plaintiff and Respondent.
INTRODUCTION
D.C. (mother) appeals a juvenile court’s jurisdiction and disposition orders
regarding her children, A.L., M.S.A.L., M.L., H.L., and M.L.L. (the children). She
contends there was insufficient evidence to support the jurisdiction allegations against her
and the removal of the children from her custody. M.L., Sr. (father) filed a separate brief
arguing insufficient evidence with regard to the jurisdiction allegation against him and
removal from his custody. Mother and father joined in each other’s arguments. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 13, 2021, the San Bernardino County Children and Family Services
(CFS) filed a Welfare and Institutions Code1 section 300 petition on behalf of the
children.2 At the time, A.L. was 14 years old, M.S.A.L. was 10 years old, M.L. was
seven years old, H.L. was five years old, and M.L.L. was one week old. The petition
alleged that the children came within section 300, subdivisions (b) (failure to protect) and
(j) (abuse of sibling). It specifically alleged that both mother and father (the parents) had
1
All further statutory references will be to the Welfare and Institutions Code
unless otherwise indicated.
2
CFS filed a separate petition for each child; however, since the petitions contain
the same allegations, we will simply refer to them as one petition.
2
a substance abuse problem, the parents failed to provide the children with adequate
provisions, and the parents were unable to benefit from previous CFS interventions.
The social worker filed a detention report stating that on January 7, 2021, CFS
received a referral alleging general neglect of the child, M.L.L. He and mother tested
positive for methamphetamine at his birth. The social workers went to the family’s home
for an unannounced visit and rang the doorbell twice, but no one answered the door.
They observed that the backyard was full of large black trash bags. There was a glass
beer bottle by the front door and several beer cans in the front yard.
The social workers met with the parents at the hospital and asked to speak with the
parents separately, but father refused and stated he and mother would speak with them at
the same time. Father reported that mother and the children would be staying with the
paternal uncle in Victorville, while he finished remodeling the house. Father could not
provide an address for the uncle, but only provided the uncle’s contact information.
Father stated he was currently not using drugs and the last time was “years ago.” When
asked, he said his drug of choice was alcohol. He stated he drank beer but not often, and
the last time he had a beer was about two weeks prior.
Mother said she did not know how she could have tested positive for any drugs.
She stated that she last used drugs in 2011 and her drug of choice was methamphetamine.
When asked how she and the baby could have tested positive, mother stated that she was
“stereotyped” by the hospital staff. She could not give a valid reason as to why she tested
positive and continuously denied any current drug use.
3
The social worker called the paternal grandmother (PGM), who reported the
parents and baby would be spending the night at her house in San Bernardino.
The following day, on January 8, 2021, father stated he had spoken with an
attorney who informed him that the social worker did not need to speak with his other
kids. The social worker thus obtained an interview warrant due to the family not
cooperating with the department and denying access to the children. Father later called
and stated that he was advised by his attorney to cooperate with CFS, and he would allow
the worker to interview the children at the PGM’s house. That day, the social workers,
along with two sheriff deputies, went to the PGM’s house and served the interview
warrant. Father came out to the front gate with mother and stated that the warrant was
not for the PGM’s home and denied access to the home. However, he said the social
workers could interview the children outside. The social worker spoke with the child
A.L., who denied the presence of drugs in her parents’ home and reported that father only
drank alcohol at birthday parties, but “not much.” When asked about the bottles observed
by the front door of the house, A.L. said “we recycle a lot.” The social worker also spoke
with the child M.S.A.L., and he denied there being drugs and alcohol in his home. When
asked about the beer cans outside of his home, he stated that the cans belonged to the
neighbors. He denied seeing father drink alcohol. The child M.L. was also interviewed,
and she said, “[D]ad drinks beer.”
After the interviews with the children, father reported that he was remodeling their
home, and they were staying at the PGM’s home because “we are dealing with you
guys.” Mother was asked about her drug use again, and she said she did not use drugs
4
before having the baby. When asked how she tested positive for amphetamines, she
stated that it “could have been the Halloween candy or falling when ‘[she] was sitting.’ ”
She reported that she last used drugs a year and a half ago.
On January 11, 2021, the social worker spoke with the hospital social worker, who
reported that M.L.L.’s meconium test results came back positive for amphetamine and
methamphetamines, and his urine test was positive for amphetamine. CFS was worried
that mother would continue to use drugs, which placed the children at risk of abuse and
neglect because mother initially stated she last used methamphetamine in 2011 and then
said it was about a year and a half ago; she also denied current drug use.
During the investigation, the social worker discovered that the parents had an
extensive dependency history. The parents’ older children were removed three different
times between 2011 and 2017. A dependency case was opened from February 24, 2011,
to May 13, 2013. A.L. and M.S.A.L. were removed from the parents’ care due to father
being unable to care for the children because of his mental health issues and mother’s
substance abuse problem. The parents were provided with reunification services. The
court terminated mother’s reunification services for failure to comply with the court-
ordered case plan. The court returned A.L. and M.S.A.L. to father’s custody under a plan
of family maintenance. On May 13, 2013, the court terminated jurisdiction and
dismissed the case, granting joint legal custody to mother and father and physical custody
to father.
A second dependency involving A.L. M.S.A.L. and M.L. was opened from
December 2, 2014, to October 28, 2015. The court found true the allegations that both
5
mother and father had a criminal history and unstable lifestyle and a substance abuse
history. It also found true that father had mental health issues. The children were
returned under family maintenance on or around August 19, 2015. The parents
completed all of their services, which included parenting, individual counseling,
outpatient parenting, individual counseling, outpatient substance abuse program, testing,
and a 12-step program. The case was dismissed and discharged on October 28, 2015.
A third dependency case was opened soon thereafter, from February 19, 2016, to
August 3, 2018, due to father’s mental health issues, the parents’ inability to provide
adequate food, clothing, and shelter for the children (minus M.L.L.), and the parents’
inability to benefit from previous interventions by CFS. The court ordered the children to
be placed in the parents’ home under a plan of family maintenance. On August 3, 2018,
the court found that the parents had completed the case plan and that CFS supervision
was no longer required. The court terminated jurisdiction and dismissed the petition.
On January 14, 2021, the court held a detention hearing in the instant case.
Although the recommendation was to remove the children and place them in foster care,
the court was impressed that the parents cooperated by appearing at the hearing and
bringing the children, so it continued the matter to see if they would continue to
cooperate. It ordered them to engage in services, have their home assessed, and
drug/alcohol test that day, and the parents agreed. The court continued the matter to
January 20, 2021.
On January 20, 2021, the social worker filed a memorandum with additional
information for the court, reporting that she went to the PGM’s home to assess it and had
6
no concerns about it. A few days later, the social worker went to the parents’ home,
which they were remodeling. There was a dumpster in the front yard, full of furniture
and other items. Two refrigerators were observed in the house, and when father opened
the refrigerators, cockroaches were observed coming out. The backyard was observed to
be full of trash, appliances, and recyclables. The parents did not allow the social worker
to observe the master bedroom or garage, since they stated that the children did not go in
there. They said they would continue to stay in the PGM’s house until their home was
done being “remodeled.”
The court held the continued detention hearing on January 20, 2021, and decided
to keep the children with the parents, since they were cooperating and following
directions. It found the children came within section 300, but decided to detain them
with the parents, on the condition that the parents continue to cooperate with CFS and test
clean. The court advised the parents that failure to test would be considered a positive
test and that they were required to live at a location approved by CFS, which was
currently only the PGM’s home. The court ordered predisposition services.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on February 17, 2021,
recommending that the court find true the allegations that mother had a substance abuse
problem and that the parents failed to benefit from prior CFS interventions, but find not
true the allegations concerning father’s substance abuse and the failure to provide
adequately for the children. The social worker recommended the court declare the
7
children dependents of the court and remain in the parents’ custody, under a plan of
family maintenance.
The social worker reported that father was present for all of the children’s
interviews. He informed the social worker that he did not want her to ask the children
about drugs or alcohol. She attempted to explain that in order to assess for safety, there
were questions that needed to be asked, and he stated his rights were being violated. The
social worker further reported that father was randomly tested for drugs/alcohol and
tested negative three times in January 2021. The social worker opined that while he had
a history of substance abuse, there was not sufficient evidence to support the allegation
that he had a current substance abuse issue.
The social worker also reported that the parents were “cooperating very minimally
with the department.” They did not appear to acknowledge CFS’s concern regarding the
baby’s positive drug test or their prior CFS history. They said they planned to fight all
the allegations and stated multiple times that CFS was violating their rights. The parents
would not provide the social worker any information regarding their backgrounds. The
social worker attempted to interview mother on February 10, 2021, and father was
present. In regards to the allegation of substance abuse and testing positive at the birth of
M.L.L., mother first stated that she “choose not to answer” but then denied the allegation.
When the social worker attempted to gather information about mother’s substance use
history and how she came to test positive, mother and father would not answer any
questions and repeatedly informed the social worker that she was “violating [their] 4th
amendment rights.” When the social worker asked the parents if they had learned
8
anything from their previous services, father stated, “We learned how to exercise our
parental and constitutional rights.”
The social worker stated that the case plan for the parents would consist of
continued random and/or on-demand substance testing and a referral to an appropriate
substance abuse program, should either of them test positive. Additionally, the parents
would need to engage and benefit from general counseling to address the reasons for CFS
intervention, and understand the concerns due to M.L.L.’s positive drug screening and
prior CFS history. The parents emailed a letter to the social worker stating they were
revoking their consent to release information to the department, and stating, “We will not
be signing your Service Agreements or Safety Plan based on a ‘tip’ on your abuse hotline
or referral.” ·Regarding their children who were of school age, the parents refused to
provide the names of the schools they attended.
The court held a jurisdiction/disposition hearing on February 22, 2021, and the
parents set the matter contested. It continued the matter but warned the parents: “I
maintained the children in your care on the strict condition you fully cooperate with the
Department, that includes signing the consents and you should already be in services. If
this is still an issue by the time we come back, I’m likely to remove the children. [¶] So
you can talk to your counsel about legal advice in that regard but I certainly would
suggest you sign those consents sooner rather than later.”
On March 8, 2021, the social worker filed a memorandum with additional
information for the court. She reported that on February 16, 2021, mother failed to show
up for her drug test. Mother said she was feeling sick, and she denied any drug use.
9
Father tested negative on February 17, 2021, and February 26, 2021. On March 4, 2021,
another social worker went to the family home to convince the parents to sign the consent
form. Father insisted he was not trying to be difficult but said he did not trust CFS. As
of the writing of the memorandum, the parents failed to provide a CFS 32 release of
information.3
The court held a contested jurisdiction/disposition hearing on March 10, 2021, and
noted its concern about mother’s failure to test, as well as her disregard of the court’s
specific condition to cooperate and engage in services pending the detention date.
Father’s counsel objected to the detention of the children and believed father could take
care of them adequately. Mother’s counsel joined in the comments and added that
mother would test that day, sign any forms, and was willing to leave the home. He
objected to the lack of facts alleged that the children were at risk and argued that the
court did not have jurisdiction to order mother to drug test prior to declaring the children
to be dependents. He added that, if the court detained the children, they could still stay
with the PGM. The children’s counsel asked the court to detain the children “out of sheer
caution,” since he could not trust what the parents were saying. County counsel agreed
that the parents had failed to comply with court orders and asked the court to detain the
children.
The court recalled that the recommendation was detention from both parents at the
original detention hearing, but it continued the case, did not detain the children, sought a
3 The CSF 32 is the consent to exchange confidential information/protected health
information form.
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less restrictive placement, and the parties came back to court a week later. The PGM’s
housing had been assessed and was determined to be appropriate, and the court left the
children with the parents “on strict conditions.” The court recalled that “[t]he conditions
of the detention were to cooperate fully with CFS, to continue to test clean, and to live
only in approved CFS location and to allow . . . access.” The court also recalled warning
the parents that any missed test could result in the removal of the children, and it advised
them they were expected to be participating in services by the next date. The court
agreed that it did not have authority to order testing prior to jurisdiction but stated it could
offer testing “as a means to allow for a safety plan” and did offer it “as a means to allow
the children to remain in the home.” The court reiterated that it specifically told each
parent at the last hearing that it would likely remove the children “if there was any missed
tests or if they refused to cooperate with the consent.” The court noted that when the
social worker went to the home, she did not go into the home, but was outside only. The
court added that mother failed to drug test both before and after coming to court in
person. The court summed up that there were two missed tests, CFS did not have access
to the inside of the home, and the parents were still not signing consent forms. The safety
plan and the remedial measures that the court offered to keep the children in the home
were not fulfilled; thus, the court found there was prima facie evidence that the children
should be removed and there was a current risk of potential drug use in the home.
Additionally, the court found that conditions had changed , continuance in the
home of the parents was contrary to the children’s best interest, and there was a
substantial danger to the physical health and safety and no reasonable means to protect
11
them absent removal. The court ordered, “that we reassess the parents for return on or
before the next hearing if they engage in services and continue to test and test clean.” It
set a pretrial settlement conference and ordered CFS to assess the possibility of return of
the children to father with mother out of the home, “based on whether he signs his
consents and begins services.”
On April 15, 2021, the court held a pretrial settlement conference. Mother’s
counsel asked if the condition that the parents drug test was actually a condition. The
court responded that since they were prejurisdiction, it was technically not an order;
however, it would behoove the parents to have clean tests, if they were going to ask for
return of the children.
On April 22, 2021, the social worker filed a memorandum with additional
information for the court. She reported that the children were placed with the PGM on
March 11, 2021, and both parents understood they were not to reside in the PGM’s home.
The PGM was currently in the RFA (resource family approval) process. The social
worker further reported that a CFT (child and family team) meeting was conducted on
April 14, 2021, and both parents signed consent forms, but stated they would not
participate in any services. They reported the only service they were interested in was
“relapse recovery.” Father wrote the following statement underneath his signature on the
CFS 32 form: “by signing this does not mean I agree to do any service. I’m signing just
to show compliance with the court.” The social worker also reported that father had been
a no-show for random drug/alcohol tests on March 11, 2021, March 22, 2021, and April
5, 2021, while mother was a no-show for drug/alcohol tests on March 2, 2021, March 4,
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2021, March 15, 2021, April 1, 2021, and April 12, 2021. The social worker stated that
the parents had not acknowledged the reasons for CFS involvement or any drug use by
mother. Thus, the social worker recommended that the children remain out of the care
and custody of the parents and reunification services be provided.
The court held a contested jurisdiction/disposition hearing on April 26, 2021.
Mother presented the testimony of her neighbor, Billy S. When asked if he had ever seen
father under the influence of alcohol, he said they would drink beer together and get a
“buzz.” He said they did not hang out on a regular basis. When asked how many beers
father had when they did hang out, Billy S. said he saw father consume 40-ounce beers.
The testimony and hearing were continued to June 9, 2021.
On June 4, 2021, the social worker filed a memorandum with additional
information for the court. She reported that the parents both started individual therapy.
She further reported that father was a no-show for testing on April 28, 2021, and tested
negative on May 7, 2021, and May 14, 2021. Mother tested negative on May 20, 2021,
and was a no-show on May 27, 2021. The social worker inquired about the no-show on
May 27, 2021, and mother responded, “I choose not to answer.” Additionally, the social
worker reported that she spoke with the parents on June 2, 2021, to inquire about the
children’s schooling information, and father reported the children were homeschooled.
When asked what program they were using or if they registered with the local district, he
replied, “I choose not to answer.” The social worker subsequently discovered three of the
children were currently enrolled at Riverside Prep, and one of them was currently
enrolled at Columbia Middle School in Adelanto.
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At the resumed contested hearing on June 9, 2021, the court dismissed the
allegations about the parents failing to provide the children with adequate food, clothing,
and shelter. Father’s counsel called the social worker as a witness and asked if CFS was
proceeding with the substance abuse allegation against father. The court said it
understood that the children’s counsel wanted to proceed with that allegation. Father’s
counsel also asked her if she was aware from any third parties any allegations that the
children were not well cared for because father was allegedly under the influence of
illegal drugs, and she said no. Father’s counsel also inquired about the allegation against
father that he failed to benefit from previous services, and the social worker confirmed
that he successfully completed services in the prior dependencies, and the court
terminated jurisdiction in those cases. However, she disagreed that father had benefitted
from those services, as he was not cooperating, and CFS was not able to work with the
family to address mother’s substance abuse, father’s acknowledgment of her substance
abuse, and the risk to the children.
Mother’s counsel cross-examined the social worker and asked how she determined
the children should be removed from the parents. The social worker said the
determination was based on the information that CFS had, the lack of cooperation by the
parents, the no-shows, the risk to the children based on the parents’ history, and the
positive drug test of the baby.
Mother called Dr. Donald Land, a professor, to testify. He was hired by the
parents to interpret the “presumptive positive test” dated January 6, 2021, concerning
M.L.L.’s meconium sample. He submitted a declaration stating that he reviewed the
14
written lab test result and saw “no evidence that this sample was confirmed by a method
to determine specific compounds.” He added that the test results were “not a trustworthy
basis to establish the presence of amphetamine and methamphetamine in meconium.”
Finally, father called as a witness a clinical social worker who started conducting
therapy sessions with mother and father approximately five weeks prior. He testified that
he had had five sessions with father, and he had no concerns that father was using illegal
drugs. He also had no concerns about father’s mental health that would impair his ability
to care for the children. The social worker also did not suspect mother used any illegal
substances or had a drug problem. He testified that mother admitted to having a problem
with methamphetamine years ago and said she last used six to seven years prior. The
court continued the matter to August 19, 2022.
On August 16, 2021, the social worker requested and reviewed records regarding
father’s and mother’s random drug testing. The social worker received notification that
there was no record of either parent attending their random drug testing from June 2021
to August 16, 2021. Regarding their lack of participation, the parents stated they felt the
order to drug test “violated their rights due to what they reported, that the original drug
test allegation was wrong, and that they should not be required to test.”
On August 18, 2021, the social worker filed a memorandum with additional
information for the court. The social worker reported that mother was referred to her
own therapist on June 10, 2021, and began receiving services on June 30, 2021. The
therapist reported that mother refused to speak about her substance abuse and would
change the subject when it came up.
15
The court held the continued jurisdiction/disposition hearing on August 19, 2021.
Mother’s counsel argued there was no evidence mother was showing signs of drug use or
that her drug use affected her ability to care for the children. Father’s counsel also
argued there was insufficient evidence father ever abused drugs. Both parents asked for
the allegations to be dismissed. Counsel for the children cited In re E.E. (2020) 49
Cal.App.5th 195 (E.E.), and argued that the court could look at the evidence as a whole
and look at the cooperation of the parents during the investigation phase. Counsel further
argued that, like E.E., mother and the baby tested positive, and the parents subsequently
did not cooperate with CFS. The children’s counsel noted that mother’s counsel
presented information by an expert that a meconium test had a tendency to be
questionable; however, the report by the expert was conducted with insufficient
information, since he was not aware of mother’s and M.L.L.’s positive urine tests at birth
when he did his initial analysis.
County counsel asserted that CFS discovered mother was not homeschooling the
children, as she alleged, and the children were not exempt from mandatory school
attendance by the school district. County counsel argued that the parents’ long CFS
history, coupled with their refusal to cooperate with CFS, their refusal to follow the
court’s orders, and their clear educational neglect of the children, placed the children at
clear-and-convincing risk of neglect.
The court dismissed the allegations that mother and father failed to provide the
children with adequate food, clothing, and shelter, but sustained the rest of the
allegations. The court made clear that it had offered predisposition services, that it could
16
not force the parents to test, but it could consider the lack of cooperation. The court
noted that at the beginning of the case, the parents readily agreed to safety plans in order
to keep the children in their care, and those safety plans included testing. However, they
subsequently failed to sign consents and had multiple no-shows. The court further noted
that this was the parents’ fourth dependency case since 2011, and the prior removals
involved substance abuse.
As to disposition, counsel for the children indicated to the court that the children
wanted to return home with the parents. However, he, as their attorney, was not in
agreement with the children, particularly because the parents continued to deny mother’s
substance abuse, despite the evidence of the positive test results at M.L.L.’s birth. He
agreed that reunification services were appropriate. The court found that continuance in
the home of the parents was contrary to the children’s welfare, and there was a substantial
danger to the physical, health and safety and no reasonable means protect the children,
absent the removal. The court noted that “we did try reasonable means to allow the
children to remain in the home and despite indicating a willingness to agree to a safety
plan, the parents were not cooperative.” The court declared the children dependents,
removed them from the custody of the parents, and ordered reunification services.
DISCUSSION
I. There Was Sufficient Evidence to Support the Court’s Jurisdiction Order
Mother argues the evidence was insufficient to support the court’s jurisdiction
over the children since there was no evidence or finding of harm as a result of her alleged
substance abuse. She asserts that the only evidence of her drug use affecting her ability
17
to care for the children was a positive drug test at delivery. Mother contends that, other
than the one positive test and her history of drug abuse, CFS failed to provide evidence of
substance abuse at the time of the jurisdiction/disposition hearing. Respondent contends
there was sufficient evidence that mother had a substance abuse problem, which placed
the children at risk of neglect and/or abuse. We agree with respondent.
A. Applicable Law and Standard of Review
“ ‘A dependency proceeding under section 300 is essentially a bifurcated
proceeding.’ [Citation.] First, the court must determine whether the minor is within any
of the descriptions set out in section 300 and therefore subject to its jurisdiction.” (In re
Stephen W. (1990) 221 Cal.App.3d 629, 645.) “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 . . . .’ (Italics added.) ‘A jurisdictional finding under
section 300, subdivision (b)(1), requires [the agency] to demonstrate the following three
elements by a preponderance of the evidence: (1) neglectful conduct, failure, or inability
by the parent; (2) causation; and (3) serious physical harm or illness or a substantial risk
of serious physical harm or illness.’ ” (E.E., supra, 49 Cal.App.5th at p. 205.)
“Second, if the court exercises jurisdiction over the minor, it must decide the
appropriate disposition. Generally, the court chooses between allowing the child to
remain in the home with protective services in place and removing the child from the
home while the parent engages in services to facilitate reunification. ‘Removal from
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parental custody at disposition may be ordered where a return home would pose a
substantial danger to the child’s physical health and where there are no reasonable
alternatives to removal. [Citation.]’ [Citation] The burden of proof for jurisdictional
findings is preponderance of the evidence; for removal, it is clear and convincing
evidence.” (E.E., supra, 49 Cal.App.5th at pp. 205-206.)
“ ‘In reviewing the jurisdictional findings and the disposition, we look to see if
substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In
making this determination, we draw all reasonable inferences from the evidence to
support the findings and orders of the dependency court; we review the record in the light
most favorable to the court’s determinations; and we note that issues of fact and
credibility are the province of the trial court.’” (In re R.T. (2017) 3 Cal.5th 622, 633
(R.T.).) “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.” (In re
Matthew S. (1988) 201 Cal.App.3d 315, 321.)
B. The Evidence Was Sufficient
Relying on In re Drake M. (2012) 211 Cal.App.4th 754, 766 (Drake M.), mother
specifically contends that, “[w]ithout a showing on the record of evidence of a specific,
defined risk of harm to a child resulting from a parent’s drug use, such harm that could
come to pass is merely speculative.”4 However, we note that the focus of section 300 is
4 Mother cites the portion of Drake M., supra, 211 Cal.App.4th 754, which states
that a finding of substance abuse for purposes of section 300, subdivision (b), must be
based on evidence sufficient to show the parent has been diagnosed with a current
[footnote continued on next page]
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on averting harm to the child, and “[t]he juvenile court need not wait until a child is
seriously injured to assume jurisdiction if there is evidence that the child is at risk of
future harm from the parent’s negligent conduct.” (In re Yolanda L. (2017) 7
Cal.App.5th 987, 993.) “[E]vidence of past conduct may be probative of current
conditions.” (Ibid.) Furthermore, as the Drake court recognized, “[t]he trial court is in
the best position to determine the degree to which a child is at risk based on an
assessment of all the relevant factors in each case.” (Drake M., supra, 211 Cal.App.4th
at p. 766.)
In E.E., supra, 49 Cal.App.5th 195, a mother tested positive for amphetamine
during a prenatal appointment, and her newborn tested positive for amphetamine and
marijuana at birth. (Id. at p. 198.) The mother had three other children and argued there
was no evidence that they had been harmed or were at risk of harm at the time of the
jurisdiction hearing. She contended there was no evidence she was “a
substance abuser and argue[d] her past use of drugs [was] an insufficient reason to assert
jurisdiction over [the child’s] siblings.” (Id. at p. 212.) This court rejected her
arguments, first noting that section 300 does not require that a child actually be neglected
before a juvenile court can assume jurisdiction, but only requires there be a substantial
substance abuse problem by a medical professional or fits the clinical definition in the
Diagnostic and Statistical Manual of Mental Disorders. To the extent she may be arguing
such diagnosis was required, we disagree. “The Drake M. formulation ‘is not a
comprehensive, exclusive definition mandated by either the Legislature or the Supreme
Court, and we are unwilling to accept [the] argument that only someone who has been
diagnosed by a medical professional or who falls within one of the specific DSM-IV-TR
categories can be found to be a current substance abuser.’ ” (In re K.B. (2021) 59
Cal.App.5th 593, 601 (K.B.).)
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risk of neglect. (Ibid.) We found that substantial evidence supported jurisdiction where
the mother used drugs at least three times during her pregnancy, was evasive and resisted
investigation and help from CFS, “never actually admitted using amphetamine while
pregnant and consistently maintained an implausible story of accidental ingestion to
explain the second positive amphetamine test.” (Id. at p. 213.) This court noted that the
mother “avoided or missed several drug tests and, at the time of the hearing, had not
seriously begun any services to address her issues.” (Ibid.) We further concluded that,
“given [the] mother’s implausible denial of the extent of her drug use while pregnant, her
evasive behavior, and her resistance to monitoring and services, the juvenile court could
reasonably disbelieve her offer of proof that she was no longer using.” (Id. at p. 214.)
The facts in the instant case are analogous to E.E. When initially asked about her
positive drug test at M.L.L.’s birth, mother said she did not know how she could have
tested positive for any drugs. She stated that she last used drugs in 2011. She further
claimed she was “stereotyped” by the hospital staff. Mother could not give a reason as to
why she tested positive and continuously denied any current drug use. When asked again
the next day, mother said she did not use drugs before having the baby. When asked
about how she tested positive for amphetamines, she told the social worker it “could have
been the Halloween candy” or “falling when ‘[she] was sitting.’ ” A month later, when
the social worker asked about her substance abuse and positive test, mother first said she
“choose not to answer” and then denied the allegation. Mother then said she would not
answer any questions and repeatedly said the social worker was “violating [her] 4th
amendment rights.”
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Furthermore, the record showed that mother had a long history of substance abuse
and an extensive dependency history. The first dependency case was opened from
February 24, 2011, to May 13, 2013, when two of the children were removed due in part
to mother’s substance abuse problem. Mother was provided with reunification services,
but they were terminated for failure to comply with the case plan. The second
dependency involving three of the children was opened from December 2, 2014, to
October 28, 2015, again due in part to mother’s substance abuse history. This time
mother completed her services, which included an outpatient substance abuse program,
testing, and a 12-step program. The third case just a few months later in February 2016,
due in part to the parents’ inability to provide adequate food, clothing, and shelter for the
children and the parents’ inability to benefit from previous interventions by CFS. The
court ordered the children to be placed in the parents’ home under a plan of family
maintenance and eventually terminated jurisdiction.
Mother did admit she had a history of drug use; however, she gave different
answers as to when she stopped using. She initially said she last used in 2011. She then
reported she last used drugs a year and a half prior to M.L.L.’s birth. When she started
individual counseling, she told her counselor she last had a problem with drugs six or
seven years prior. We further note that when she started seeing another therapist on June
30, 2021, mother refused to speak about her substance abuse and would change the
subject when it came up.
In any event, despite having completed prior substance abuse treatment, mother
relapsed as shown by her positive test at M.L.L.’s birth. She denied the allegation of the
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positive test and attempted to rationalize her positive test with nonsensical explanations.
More importantly, mother refused to participate in predisposition testing, even though she
agreed to participate in drug testing and was explicitly warned that a failure to test would
be considered a positive test. Mother had multiple no-shows and refused to drug test
during the period from June 2021 to August 16, 2021. 5 Mother and father reported that
they felt the order to drug test violated their rights, that the original drug test allegation
was wrong, and that they should not be required to test.
In addition, despite agreeing to cooperate with CFS, mother refused to sign the
consents to release information to the department or the safety plan for months.
Although the parents signed the consent forms on April 14, 2021, they reported that they
would not participate in any services, except perhaps “relapse recovery.” Furthermore,
the parents refused to provide the names of the schools the children attended. Father then
reported the children were homeschooled. However, the social worker later discovered
the children were actually enrolled in school.
Given mother’s implausible explanations of why she tested positive at M.L.L.’s
birth, her inconsistent answers with regard to her substance abuse history, her refusal to
5 In her reply brief, mother asserts that, while she did agree to predisposition
services, those were only to last to the disposition hearing scheduled for February 22,
2021. She argues that it is baseless for respondent to accuse her of not following the
court’s orders, since “she did test to the date the Dispo was to be heard, but didn’t
continue testing after the dispo was continued over and over again.” We note the record
does not appear to show she drug tested before February 22, 2021. However, it does
show she failed to appear for her drug test on February 16, 2021. It also reflects that, at
that time, the parents had revoked their consent to release information and stated they
would not sign the service agreement or safety plan. Moreover, at the hearing on
February 22, 2021, the court noted the parents’ lack of cooperation was an issue.
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participate in drug testing and services, and her lack of cooperation with CFS, the
juvenile court could reasonably conclude that she was still using drugs and reasonably
disbelieve her assertions to the contrary. (See E.E., supra, 49 Cal.App.5th at p. 214.)
Furthermore, mother had an extensive history of substance abuse and still failed to
appreciate the serious consequences of using drugs, as the tests indicated she used
methamphetamine when she was pregnant with M.L.L. Mother denied having a current
problem and took no apparent steps to address her use, and in fact refused to speak about
her substance abuse with her latest therapist. “ ‘[D]enial is a factor often relevant to
determining whether persons are likely to modify their behavior in the future without
court supervision.’ ” (In re A.F. (2016) 3 Cal.App.5th 283, 293; see K.B., supra, 59
Cal.App.5th at p. 604 [“A court is entitled to infer past conduct will continue where the
parent denies there is a problem.”].) We also note the parents’ evasive answers about the
children’s schooling—at first, refusing to give the names of their schools, then stating the
children were homeschooled. Issues with schooling could indicate a lack of supervision.
(See K.B., at p. 603.) All of these factors combined supported the court’s finding that the
children were at risk of suffering harm and/or neglect.
Viewing the evidence in the light most favorable to the court’s determinations, as
we must, we conclude the court properly took jurisdiction of the children. (R.T., supra, 3
Cal.5th at p. 633.)
II. There Was Sufficient Evidence to Support the Court’s Removal of the Children
Mother argues there was insufficient evidence to meet the heightened standard of
clear and convincing evidence to support the court’s removal of the children from her
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custody, pursuant to section 361, subdivision (c)(1). She claims the evidence of the one
positive test and her history did not support a finding that the children faced a
“substantial danger” to their health and safety. Moreover, it did not show that removal
was the only reasonable means by which the children’s physical health could be
protected. She points out that there were no problems when the children lived with the
parents at the PGM’s home.6 We conclude the evidence was sufficient to justify removal
of the children.
As the court stated, “we did try reasonable means to allow the children to remain
in the home and despite indicating a willingness to agree to a safety plan, the parents
were not cooperative.” (See ante, § I.) Mother’s resistant behavior and lack of progress
in services reflected a desire to avoid investigation into the extent of her drug use and a
lack of insight into the serious problems parental drug use poses. (E.E., supra, 49
Cal.App.5th at p. 217.) Furthermore, there was no indication that the parents had cleaned
up or improved the living conditions of their home. Based on the evidence, the juvenile
court could reasonably infer that mother lived in an environment unsuitable for children,
that she would not cooperate with CFS, and that she would not protect the children from
her drug problem. These inferences support a conclusion that the children could not
safely be returned to mother’s custody. (E.E., at pp. 215-216.)
6 Mother argues the children “could have successfully remained home” and they
did not face substantial danger to their health and safety in her custody. She does not
appear to suggest staying with her in the PGM’s home.
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We note mother’s claim in her reply brief that the children could have remained
home, subject to CFS’s stringent supervision and unannounced visits, the court’s
continued oversight, and her “consistent compliance with the reunification case plan.”
However, we disagree, in light of her consistent noncompliance with the prejurisdiction
safety plan. (See ante.)
To the extent father joins in mother’s opening and reply briefs as it inures to his
benefit, we also affirm the court’s jurisdiction and disposition orders.
III. We Need Not Address Father’s Claims
Father argues that the juvenile court’s jurisdiction finding and order based upon
his alleged substance abuse, as well as the court’s disposition order, were not supported
by sufficient evidence. He further claims the children could have remained with him in
the PGM’s home, “subject to CFS’s ‘stringent’ supervision and unannounced visits, the
juvenile court’s continued oversight, father’s consistent compliance with the court’s
family maintenance case plan, and, if necessary, mother’s relocation.”7
“The purpose of dependency proceedings is to protect children. [Citation.]
Dependency proceedings are civil in nature and are designed to protect the child, not to
punish the parent. [Citation.] Therefore, the court takes jurisdiction over children
(§ 300); it does not take jurisdiction over parents. Moreover, the court has jurisdiction
over the children if the actions of either parent bring the child within one of the statutory
7 We note that, at the jurisdiction/disposition hearing, father stated he simply
“wants his children back today.” He did not suggest staying with the PGM or placing the
children with him under family maintenance.
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definitions in section 300.” (In re Joshua G. (2005) 129 Cal.App.4th 189, 202, italics
added.) In other words, “it is necessary only for the court to find that one parent’s
conduct has created circumstances triggering section 300 for the court to assert
jurisdiction over the child.” (In re I.A. (2011) 201 Cal.App.4th 1484, 1491, italics
added.) “For this reason, an appellate court may decline to address the evidentiary
support for any remaining jurisdictional findings once a single finding has been found to
be supported by the evidence.” (Id. at p. 1492; see E.E., supra, 49 Cal.App.5th at p. 212
[court did not need to review evidentiary basis for sustained allegations against the father
since it concluded jurisdiction was proper based on the mother’s conduct].) In light of
our conclusion that the court properly took jurisdiction over the children due to mother’s
conduct, we decline to address father’s claims regarding jurisdiction. As to his claim
regarding the court’s removal of the children from his custody, we conclude removal was
proper for the reasons discussed ante, including his failure to show any concern about
mother’s or M.L.L.’s positive drug tests at birth, his resistant behavior and interference
with the interviews of the children, and his minimal cooperation with CFS. (See ante,
§ I.) This evidence, coupled with evidence of father’s multiple failures to submit to drug
testing in the face of apparent ongoing alcohol use and the unsanitary conditions in the
parents’ home constitutes substantial evidence that “[t]here is or would be a substantial
danger to the physical health, safety, protection, or physical or emotional well-being of
the minor[s] if the minor[s] were returned home, and there are no reasonable means by
which the minor[s’] physical health can be protected without removing the minor[s] from
the minor[s’] parent’s . . . physical custody.” (§ 361, subd. (c)(1).) We conclude the
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juvenile court reasonably tried to permit the children to remain with the parents but was
unable to safely do so due to the lack of cooperation.
To the extent mother joins in father’s reply brief, we also affirm the court’s
jurisdiction and disposition orders.
DISPOSITION
We affirm the juvenile court’s jurisdictional and dispositional findings and orders.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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