In re A.H. CA2/7 ( 2020 )

Filed 12/11/20 In re A.H. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re A.H., a Person Coming B304199
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 19CCJP05773)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
SHAMIKA H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Marguerite D. Downing, Judge. Affirmed.
Roni Keller, under appointment by the Court of Appeal, for
Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Jane Kwon, Principal Deputy County
Counsel, for Plaintiff and Respondent.
__________________________
Shamika H. (Mother) appeals from the juvenile court’s
jurisdiction findings and disposition orders declaring 15-month-
old A.H. a dependent of the court under Welfare and Institutions
Code1 section 300, subdivision (b)(1), based on Mother’s substance
abuse. Mother contends there is insufficient evidence to support
the jurisdiction findings. Mother also challenges the disposition
orders removing A.H. from her physical custody, granting
monitored visitation, and requiring Mother to participate in a
drug treatment program. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prior Referral
In September 2018 the Los Angeles County Department of
Children and Family Services (Department) received a referral
alleging general neglect of newborn A.H. by Mother. According to
the reporting party, Mother had a history of cocaine use,2 and she
last used cocaine on January 1, 2018. Mother stated she stopped
using cocaine after she found out she was pregnant. In April
1 Further statutory references are to the Welfare and
Institutions Code.
2 Mother was arrested for possession of a controlled
substance on November 9, 2010.
2
2018 Mother started using marijuana for pain management after
she got into a car accident, but she claimed she stopped using
marijuana after she tested positive on April 26, 2018.
Mother tested negative for drugs upon admission to the
hospital for childbirth.3 After Mother and A.H. were discharged,
they stayed at a homeless shelter. The social worker did not
conduct an investigation because Mother and A.H. were doing
well, and Mother was compliant with the homeless shelter’s
house rules.
B. The Referral and Investigation
On August 9, 2019 the Department received a referral
alleging Mother neglected then-10-month-old A.H. On August 8
Mother was driving with A.H. when she was involved in a car
accident in which the other driver was determined to be at fault.
Mother and A.H. were transported to the hospital by ambulance
because of Mother’s injuries. At the hospital, Mother tested
positive for methamphetamine and marijuana.4 Mother arranged
for A.H. to stay with maternal grandmother S.M. when A.H. was
discharged from the hospital. Maternal grandmother planned to
take Mother and A.H. to her home after the hospital discharged
Mother.
On August 9 investigating social worker Carissa Spurlock
interviewed maternal great uncle Tyrone F. Tyrone and other
maternal relatives had visited Mother earlier that morning in the
3 On January 9, 2019 the juvenile court found Y.O. was
A.H.’s alleged father. Y.O. is not a party to the appeal.
4 Mother also tested positive for opiates, but the results
reflected medication given to Mother at the hospital.
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hospital. Mother was in great pain from her right ankle injury,
and she appeared to be hallucinating, asking for A.H.’s deceased
maternal great-grandmother to help her. According to Tyrone,
Mother and maternal grandmother did not have a good
relationship and constantly argued.
Maternal grandmother stated she was not aware Mother
was using methamphetamine until the hospital social worker
informed her there were drugs in Mother’s system. Maternal
grandmother had helped Mother get into a homeless shelter
when A.H. was born, but Mother was asked to leave because she
got into an argument with another client. Mother had taken care
of A.H. by herself; however, more recently Mother left A.H. with
maternal grandmother for a couple of hours or one to two days.
Maternal grandmother disclosed she had previously lost custody
of her four children because of her cocaine addiction, but she had
been sober since 2014. She was prepared to care for A.H. if
Mother could not get into a drug treatment program. Maternal
grandmother’s roommate, Laronda Burton, had a substance
abuse history, but she had been sober for many years. Burton
stated A.H. could only temporarily stay with her and maternal
grandmother in their two-bedroom apartment because it was
subsidized low-income housing, and Burton did not want to get
into trouble with the housing authority.
On August 9 Spurlock also interviewed Mother at an
apartment in Inglewood. Mother stated she was homeless, and
she and A.H. were staying with her friend Tal Jones in the one-
bedroom apartment. Mother and A.H. slept on a mattress in the
living room. Mother stated she understood the risk of cosleeping
with A.H., but it made it easier to give A.H. a bottle in the middle
of the night. Spurlock observed Mother was coherent and well-
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groomed, and there was no visible drug paraphernalia in the
apartment.
Mother reported she was driving when the car in front of
her made an illegal U-turn and hit her car. Her car spun out of
control, and a rear tire and rotor fell off her car. A.H. was in her
car seat and was not injured. Mother and A.H. were taken to the
hospital because Mother’s right anklebone was shattered.
Mother stated she never authorized the hospital to test her for
drugs. She admitted using both methamphetamine and
marijuana, but she denied she was “high” or under the influence
of drugs while driving. Mother said she last used
methamphetamine two to three weeks earlier and did not often
smoke marijuana. When Spurlock advised Mother
methamphetamine remained in the body for only a few days,
Mother continued to deny she regularly used drugs. Mother
added she did not use drugs around A.H.; instead, she would
leave A.H. with the maternal grandmother if she planned to use
drugs. Mother stated she was committed to changing her
lifestyle and ending her use of drugs.
On August 13, 2019 Mother tested positive for marijuana
with a THC level of 359 ng/ml.5 On August 15 Mother was
accepted into an inpatient drug treatment program. Maternal
grandmother again cared for A.H. But five days later Mother
reported she was no longer in the program because it could not
accommodate her medical needs, including surgery to repair her
right ankle and physical therapy. Mother planned to move back
in with Jones while A.H. remained with maternal grandmother.
5 Nanograms per milliliter.
5
On August 27 Mother tested positive for marijuana with a THC
level of 43 ng/ml.
C. The Petition and Detention
On September 5, 2019 the Department filed a dependency
petition on behalf of A.H. under section 300, subdivision (b)(1).
Count b-1 alleged Mother had a history of substance abuse
including cocaine and marijuana and was a current abuser of
methamphetamine and marijuana, which rendered her incapable
of providing appropriate care and supervision of A.H. On
August 8, 2019, while A.H. was in Mother’s care, Mother tested
positive for methamphetamine and marijuana, and she again
tested positive for marijuana on August 13 and 27. Count b-2
alleged Mother endangered A.H. because Mother drove under the
influence of methamphetamine and marijuana with A.H. in the
car, and Mother was involved in a car accident.
At the September 6, 2019 detention hearing, the juvenile
court detained A.H. from Mother. The court ordered Mother to
submit to random drug testing. The court granted Mother
monitored visitation with the Department having discretion to
liberalize visitation or return A.H. to Mother’s care.
D. The Jurisdiction and Disposition Report
The October 15, 2019 jurisdiction and disposition report
stated Mother denied having a substance abuse problem. Mother
said, “That’s funny because I wasn’t under the influence, it was in
my system. My daughter has never been in danger. The car
accident was not my fault. Clearly I don’t have a drug problem.”
When Mother was asked “how the drugs ended up in her system,”
she replied, “Smoked it probably a couple of days before. Not
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even really smoked it. I was around people that was smoking. I
haven’t even been using it.” But Mother admitted she used drugs
sometime “[s]ince before the car accident.” Mother added, “They
drug[] tested me after the accident. I believe that my mom told
them to test me because she wants my daughter. I find that
funny because she cannot have any kids in her possession.”
Mother also denied she placed A.H. in a detrimental
situation by driving while under the influence of
methamphetamine and marijuana. Mother stated, “My child
wasn’t in danger at all. She was strapped into her car seat. I
wasn’t under the influence at all. I wish they would stop saying
that because that’s false.” Mother said the other driver was at
fault because he made an illegal U-turn and hit her car.
Mother was willing to participate in parenting and life
skills classes, counseling, and random drug testing to reunify
with A.H. Mother tested negative for drugs on September 12 and
October 8, 2019. However, she did not show up for testing on
September 23. Mother did not test in the two months leading up
to the jurisdiction and disposition hearing, missing drug tests on
November 19 and 26 and December 4, 9, 17, and 24. Mother
explained she did not have transportation to get to the drug
testing site. The social worker offered Mother a bus pass on
three separate occasions, but Mother responded she could not
walk to the bus stop. Mother’s friend Earl took her to monitored
visits with A.H., but Mother claimed she did not want to ask Earl
to take more time off from work to drive her to the drug testing
site.
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E. The Jurisdiction and Disposition Hearing
At the January 9, 2020 jurisdiction and disposition hearing,
the juvenile court sustained the allegations in counts b-1 and b-2
of the petition under section 300, subdivision (b)(1). The court
found Mother did not understand that driving under the
influence of drugs with A.H. was a safety risk. The court stated,
“[A]lthough the accident was not caused by [Mother], the fact
that [Mother] was unable, possibly, to prevent the accident, could
be a result of the fact that the mother is using and abusing
multiple drugs at the same time, and possibly self medicating.”
The juvenile court removed A.H. from Mother’s physical
custody. The minute order states the court “finds by clear and
convincing evidence . . . [¶] [that it] is reasonable and necessary
to remove the child from the parents . . . because there is a
substantial danger to the physical health, safety, protection, or
physical or emotional well-being . . . of the child, and there is no
reasonable means by which the child’s physical health can be
protected, without removing the child from the home and the
care, custody, and control of that or those parent(s) . . . .”
(Boldface omitted.) However, the court did not make any oral
findings on the record to support removal, nor did it address
reasonable alternatives to removal. The court ordered Mother to
participate in a full drug treatment program with aftercare,
weekly on demand drug testing, a 12-step program with court
card and sponsor, parenting classes, and individual counseling to
address case issues including substance abuse. The court
explained, “She is going to enroll in parenting [classes], because
she clearly is not understanding the obligations of having a young
child and driving under the influence of alcohol and drugs, and
whatever is—her need to use illegal substances, that the court
8
finds, that individual counseling will address, as to the nexus
that this accident could have been more severe than it was, and
there is the risk.” The court granted Mother monitored visits
three times a week for a minimum of three hours each visit with
the Department having discretion to liberalize visitation.
Mother timely appealed.
DISCUSSION
A. Substantial Evidence Supports the Jurisdiction Findings
Under Section 300, Subdivision (b)(1), Based on Mother’s
Substance Abuse
1. Governing law
“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.’” (In re
L.W. (2019) 32 Cal.App.5th 840, 848; accord, In re E.E. (2020)
49 Cal.App.5th 195, 205.) Section 300, subdivision (b)(1),
requires the Department to demonstrate three elements by a
preponderance of the evidence: (1) the parent’s or guardian’s
neglectful conduct or failure or inability to protect the child, (2)
causation, and (3) serious physical harm or illness or a
substantial risk of such harm or illness. (E.E., at p. 205; In re
Joaquin C. (2017) 15 Cal.App.5th 537, 561.)
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“‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. “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.” [Citation.] “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
I.J. (2013) 56 Cal.4th 766, 773; accord, In re R.T. (2017) 3 Cal.5th
622, 633; In re D.B. (2018) 26 Cal.App.5th 320, 328 [“We review
the entire record to determine whether the trial court’s
jurisdictional and dispositional findings are supported by
substantial evidence.”].) “Substantial evidence is not
synonymous with any evidence. [Citation.] To be substantial,
the evidence must be of ponderable legal significance and must be
reasonable in nature, credible, and of solid value.” (In re M.S.
(2019) 41 Cal.App.5th 568, 580; accord, In re J.A. (2020)
47 Cal.App.5th 1036, 1046.) “The appellant has the burden of
showing there is no evidence of a sufficiently substantial nature
to support the findings or orders.” (In re E.E., supra,
49 Cal.App.5th at p. 206; accord, D.B., at pp. 328-329.)
2. The jurisdiction findings are supported by substantial
evidence
Mother contends there is not substantial evidence to
support the juvenile court’s jurisdiction findings because she was
not at fault in the car accident; there was no evidence she was
10
intoxicated while driving; and there is no nexus between her
substance use and risk of serious harm to A.H. There is
substantial evidence to support the jurisdiction findings.
Mother had a history of cocaine use and was arrested for
possession of a controlled substance in November 2010. Mother
last used cocaine on January 1, 2018, when she learned she was
pregnant with A.H. But Mother tested positive for marijuana on
April 26, 2018, while she was still pregnant with A.H. Then
Mother tested positive for methamphetamine and marijuana
following her car accident on August 9, 2019, while she was
driving with A.H. Mother denied she was under the influence at
the time of the accident or had used drugs in the two to three
weeks before her accident, but when the social worker explained
that methamphetamine only stayed in the body for a few days,
Mother admitted she may have smoked methamphetamine a few
days earlier, then claimed she was only around other people who
were smoking. Mother also denied A.H. was “in danger at all”
because she was “strapped in her car seat.”
Mother also failed to comply with the juvenile court’s order
that she submit to random drug testing. Mother claimed she did
not have transportation to get to the drug testing center, but she
declined the social worker’s bus pass offer on three separate
occasions6 and failed to enlist Earl’s help to drive her, although
he drove her to her visits with A.H. Mother points to the
evidence she had negative drug tests on September 12 and
October 8, 2019 and the August 27, 2019 test showed her THC
levels had declined to 43 ng/ml as proof she was no longer using
6 Mother did not present a doctor’s note or other evidence
that she could not walk at any time following her injury.
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drugs at the time of the January 9, 2020 hearing. But Mother
failed to submit to any court-ordered drug testing for two months,
missing six drug tests in November and December 2019. Mother
voluntarily enrolled in an inpatient substance abuse treatment
program, but she left after five days. Although Mother claimed
she could not stay there and receive medical treatment, she did
not submit evidence she received any other substance abuse
counseling or treatment. Under these circumstances, it was a
reasonable inference that Mother continued to have a substance
abuse problem.
Mother’s denial of her substance abuse problem,
noncompliance with court-ordered random drug testing, and
failure to recognize she placed A.H. in a dangerous situation by
driving with her while she had drugs in her system supported the
juvenile court’s finding of substantial risk of harm to A.H. (In re
D.B. (2020) 48 Cal.App.5th 613, 622 [affirming jurisdiction
finding where father lacked insight and “gave no sign he would
change his conduct” towards daughter]; In re A.F. (2016)
3 Cal.App.5th 283, 293 [“‘[D]enial is a factor often relevant to
determining whether persons are likely to modify their behavior
in the future without court supervision.’”].) Moreover, at the time
of the January 9, 2020 jurisdiction and disposition hearing, A.H.
was only 15 months old. Given A.H.’s age, “the finding of
substance abuse is prima facie evidence of the inability of a
parent or guardian to provide regular care resulting in a
substantial risk of physical harm.” (In re Drake M. (2012)
211 Cal.App.4th 754, 767; accord, In re Christopher R. (2014)
225 Cal.App.4th 1210, 1221.)
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B. Substantial Evidence Supports the Removal Order; the
Juvenile Court Erred in Failing To Make Oral Findings To
Support the Order, but the Error Was Harmless
“‘At the dispositional hearing, a dependent child may not be
taken from the physical custody of the parent under section 361
unless the court finds there is clear and convincing evidence
there is or would be a substantial danger to the child’s physical
health, safety, protection, or physical or emotional well-being if
returned home, and that there are no reasonable means to
protect the child’s physical health without removing the child.’”
(In re D.P. (2020) 44 Cal.App.5th 1058, 1065; accord, In re G.C.
(2020) 48 Cal.App.5th 257, 265; see § 361, subd. (c)(1).) The
juvenile court must determine “whether reasonable efforts were
made to prevent or to eliminate the need for removal of the minor
from his or her home” and “shall state the facts on which the
decision to remove the minor is based.” (§ 361, subd. (e).)
“In determining whether a child may be safely maintained
in the parent’s physical custody, the juvenile court may consider
the parent’s past conduct and current circumstances, and the
parent’s response to the conditions that gave rise to juvenile court
intervention.” (In re D.B., supra, 26 Cal.App.5th at p. 332;
accord, In re N.M. (2011) 197 Cal.App.4th 159, 170.) “A removal
order is proper if based on proof of parental inability to provide
proper care for the child and proof of a potential detriment to the
child if he or she remains with the parent. [Citation.] ‘The
parent need not be dangerous and the minor need not have been
actually harmed before removal is appropriate. The focus of the
statute is on averting harm to the child.’” (N.M., at pp. 169-170;
accord, In re V.L. (2020) 54 Cal.App.5th 147, 154.)
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“When reviewing a finding that a fact has been proved by
clear and convincing evidence, the question before the appellate
court is whether the record as a whole contains substantial
evidence from which a reasonable fact finder could have found it
highly probable that the fact was true. In conducting its review,
the court must view the record in the light most favorable to the
prevailing party below and give appropriate deference to how the
trier of fact may have evaluated the credibility of witnesses,
resolved conflicts in the evidence, and drawn reasonable
inferences from the evidence.” (Conservatorship of O.B. (2020)
9 Cal.5th 989, 1011-1012; accord, In re V.L., supra,
54 Cal.App.5th at p. 155 [“O.B. is controlling in dependency
cases”].) We review the entire record to determine whether the
removal order is supported by substantial evidence. (V.L., at
p. 155; In re D.B., supra, 26 Cal.App.5th at pp. 328-329; see O.B.,
at p. 1011.)
Mother contends the removal order must be reversed
because there was not substantial evidence removal was
necessary to prevent substantial danger to A.H. The same
evidence that supported jurisdiction amply supported the
removal order. Mother denied she had a substance abuse
problem, failed to understand she placed A.H. in a detrimental
situation by driving with her while Mother had drugs in her
system, and failed for two months prior to the hearing to submit
to court-ordered drug testing to show she was no longer using
drugs. Nor has Mother argued on appeal there were reasonable
means to protect A.H. absent removal from Mother.
The juvenile court’s failure to make factual findings on the
record to support removal was error, but we conclude it was
harmless. (§ 361, subd. (e) [“The court shall state the facts on
14
which the decision to remove the minor is based.”].) The
boilerplate findings in the minute order are not a sufficient
substitute for the juvenile court making factual findings on the
record tailored to the case. But the failure of the juvenile court to
state its factual findings was harmless because it is not
reasonably probable had the court expressly made findings under
section 361, subdivision (e), the findings would have been in favor
of continued parental custody. (See In re Diamond H. (2000)
82 Cal.App.4th 1127, 1137 [“Although the court did not state a
factual basis for its removal order, any error is harmless because
it is not reasonably probable such findings, if made, would have
been in favor of continued parental custody.”], disapproved on
another ground in Renee J. v. Superior Court (2001) 26 Cal.4th
735, 748, fn. 6; In re Jason L. (1990) 222 Cal.App.3d 1206, 1218
[“[C]ases involving a court’s obligation to make findings
regarding a minor’s change of custody or commitment have held
the failure to do so will be deemed harmless where ‘it is not
reasonably probable such finding, if made, would have been in
favor of continued parental custody.’”]; see Cal. Const., art. VI,
§ 13 [“No judgment shall be set aside . . . for any error as to any
matter of procedure, unless, after an examination of the entire
cause, including the evidence, the court shall be of the opinion
that the error complained of has resulted in a miscarriage of
justice.”].)
C. The Juvenile Court Did Not Abuse Its Discretion in
Ordering Drug Treatment and Monitored Visitation
“Under section 362, subdivision (d), ‘“[t]he juvenile court
has broad discretion to determine what would best serve and
protect the child’s interests and to fashion a dispositional order
15
accordingly.”’” (In re Christopher R., supra, 225 Cal.App.4th at
p. 1221; accord, In re Daniel B. (2014) 231 Cal.App.4th 663, 673.)
“The juvenile court has authority to require a parent to submit to
substance abuse treatment as part of a reunification plan as long
as the treatment is designed to address a problem that prevents
the child’s safe return to parental custody.” (In re Nolan W.
(2009) 45 Cal.4th 1217, 1229.) “‘“On appeal, this determination
cannot be reversed absent a clear abuse of discretion.”’”
(Daniel B., at p. 673; accord, Christopher R., at p. 1221.)
“A disposition order granting reunification services must
provide for visitation between a child and parent ‘as frequent as
possible, consistent with the well-being of the child.’ (§ 362.1,
subd. (a)(1)(A).) In addition, section 362.1 mandates ‘[n]o
visitation order shall jeopardize the safety of the child.’ (§ 362.1,
subd. (a)(1)(B).)” (In re T.M. (2016) 4 Cal.App.5th 1214, 1218;
accord, In re Matthew C. (2017) 9 Cal.App.5th 1090, 1100-1101.)
“The power to regulate visits between dependent children and
their parents rests with the juvenile court and its visitation
orders will not be disturbed on appeal absent an abuse of
discretion.” (In re D.P., supra, 44 Cal.App.5th at p. 1070; accord,
In re R.R. (2010) 187 Cal.App.4th 1264, 1284.)
The juvenile court did not abuse its discretion in ordering
Mother to participate in a full substance abuse program with
aftercare to address her continuing substance abuse problem.
Likewise, the court did not abuse its discretion in ordering
monitored visitation in light of Mother’s denial of her substance
abuse problem and failure to appreciate the risk of harm to A.H.
caused by her driving with A.H. with methamphetamine and
marijuana in her system.
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DISPOSITION
The jurisdiction findings and disposition orders are
affirmed.
FEUER, J.
We concur:
SEGAL, Acting P. J.
RICHARDSON, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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