In re Camila M. CA2/2 ( 2023 )

Filed 3/16/23 In re Camila M. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re CAMILA M., a Person B316683
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 21CCJP03887A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
BENJAMIN M. et al.,
Defendants and
Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Robin R. Kesler, Judge Pro Tempore. Affirmed.
Richard B. Lennon and Anne E. Fragasso, under
appointments by the Court of Appeal, for Defendant and
Appellant Benjamin M.
Elizabeth C. Alexander, under appointment by the Court of
Appeal, for Defendant and Appellant Rachel M.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Principal Deputy
County Counsel, for Plaintiff and Respondent.
******
Rachel M. (mother) and Benjamin M. (father) challenge the
substantiality of the evidence to support the juvenile court’s
October 2021 assertion of jurisdiction over their then-newborn
child, Camila M. Although moot, we exercise our discretion to
reach the parents’ challenge but determine that it lacks merit.
Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Camila M. was born to mother and father in mid-July 2021.
At the time of the birth, both Camila and mother tested positive
for marijuana.
Mother is a long-time, daily smoker of marijuana. She
started smoking when she was 13 years old and in the 7th grade
but self-identifies as a “recreational” smoker. When she became
pregnant with Camila, she continued her daily use through
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smoking and “bong hits.” Although mother told her obstetrician
that she was not experiencing any pregnancy symptoms or pain,
once this dependency case started, mother started saying that
she had been smoking to alleviate pregnancy-associated
cramping and low back pain. She had continued smoking over
her obstetrician’s express advisement that she needed to stop
smoking. Father knew mother was smoking marijuana while
pregnant.
Father is also a daily smoker of marijuana. He suffers from
Crohn’s disease and thus has a medicinal reason for his daily use.
II. Procedural Background
On August 19, 2021, the Los Angeles Department of
Children and Family Services (the Department) filed a petition
asking the juvenile court to exert dependency jurisdiction over
Camila on the grounds that (1) Camila’s positive test for
marijuana at the time of birth was due to the “unreasonable acts
by . . . mother[ that] plac[ed] the child at risk of physical harm,”
and (2) mother’s and father’s status as current abusers of
marijuana renders them “incapable of providing regular care” for
Camila, who is “of such a young age as to require constant care
and supervision.” As to all allegations, the parents’ conduct
“endangers” Camila’s “physical health and safety and places [her]
at risk of serious physical harm, damage, and danger,” thereby
warranting the exercise of dependency jurisdiction under Welfare
and Institutions Code section 300, subdivision (b).1
Mother started drug testing. Although her initial tests
were positive for marijuana, she returned four negative tests in
September 2021. Father returned two negative tests and one
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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positive test in September 2021. Although father indicated he
only smokes outside, the interior of the parents’ house smelled of
marijuana.
On October 5, 2021, the juvenile court held a jurisdictional
hearing. The court sustained all allegations as true. The court
noted that the parents’ recurrent, daily use was not “recreational”
and thus was indicative of a substance abuse “problem.” The
court further explained that marijuana “is a mind altering
substance” that interferes with a person being “mentally there”
and that a child as young as Camila “needs parents that are
mentally there when they’re taking care of their child,” such that
the parents’ use in this case places Camila at risk of harm. The
court denied the Department’s request to declare Camila a
“dependent” and place her under the court’s formal supervision;
instead, the court invoked its authority under section 360,
subdivision (b) to informally supervise the child as long as the
parents refrained from their marijuana use and agreed to test.
Both parents filed timely appeals. Father indicated on his
notice of appeal that he was also appealing from “the court’s
order to proceed pursuant to [Welfare and Institutions Code
section] 360[, subdivision ](b).” However, aside from a conclusory
assertion that the dispositional order must be reversed if there is
no substantial evidence to support the jurisdictional finding, only
the latter is argued in the briefs on appeal. We treat the case as
involving only the portion of the judgment so attacked.
DISCUSSION
Mother and father argue that the juvenile court’s
jurisdictional findings are not supported by the record.
As a threshold matter, the Department argues that the
parents’ appeals are moot because Camila was placed on informal
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supervision in October 2021 and the juvenile court’s jurisdiction
was terminated when the Department did not institute further
proceedings during the period of informal supervision.2 The
Department is correct as the parents can point to no court order
showing them to be currently under the court’s supervision, much
less jurisdiction. Thus, these appeals would seem to be moot
under our Supreme Court’s latest pronouncement regarding the
mootness doctrine in juvenile dependency cases because there is
no extant court order that “continues to impact the parents” and
because the stigma of the jurisdictional finding is not enough, by
itself, to avoid mootness. (In re D.P. (2023) 14 Cal.5th 266, 276-
278.) However, we have the discretion to reach the merits of the
parents’ challenge—and are encouraged to exercise that
discretion—in situations, such as this one, where the parents are
challenging a jurisdictional finding that “can be considered by the
Department in determining whether to file a dependency petition
or by a juvenile court in subsequent dependency proceedings.”
(Id. at p. 285.) We will accordingly exercise that discretion here.
A juvenile court may exert dependency jurisdiction over a
child if, as is pertinent here, the “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 inability of the parent . . . to
provide regular care for the child due to the parent’s . . .
substance abuse.” (§ 300, subd. (b)(1).) We review a juvenile
court’s jurisdictional findings for substantial evidence, asking
2 The juvenile court has no authority to take any further role
in overseeing the services or the family unless the matter is
brought back before the court pursuant to section 360,
subdivision (c). (See §§ 360, subds. (b), (c), 301; In re Adam D.
(2010) 183 Cal.App.4th 1250, 1260-1261.)
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whether the record—when viewed as a whole and drawing all
inferences in support of the court’s findings—contains
“‘“sufficient facts to support [its jurisdictional] findings.”’” (In re
I.J. (2013) 56 Cal.4th 766, 773.)
I. Camila’s positive marijuana test at birth
Substantial evidence supports the juvenile court’s
jurisdictional finding that mother’s use of marijuana while
pregnant placed Camila at substantial risk of suffering serious
physical harm or illness. A child’s ingestion of illegal drugs
constitutes “serious physical harm” (In re Rocco M. (1991) 1
Cal.App.4th 814, 825), and a mother’s use of “dangerous drugs”
biologically causes a child to ingest such drugs and, as a result,
places the fetus at risk of serious physical harm (In re Troy D.
(1989) 215 Cal.App.3d 889, 899-900). Here, it is undisputed that
mother continued her daily use of marijuana while pregnant with
Camila, which had the effect of forcing Camila to ingest that
marijuana every day of her gestation and thereby placed her at
serious risk of serious physical injury.
The parents resist this conclusion with two arguments.
First, the parents argue that Camila was “physically fine”
at the time of her birth, so jurisdiction is inappropriate under a
“no harm, no foul” rationale. We disagree. It is well settled that
“‘[a] juvenile court ‘need not wait until a child is seriously abused
or injured to assume jurisdiction . . . .’” (In re L.W. (2019) 32
Cal.App.5th 840, 849, quoting In re R.V. (2012) 208 Cal.App.4th
837, 843.)
Second, the parents argue that In re J.A. (2020) 47
Cal.App.5th 1036 (J.A.) dictates a result in their favor. J.A. held
that a mother’s use of “edible marijuana” gummies during
pregnancy “to address her pregnancy symptoms” did not
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constitute substantial evidence supporting the assertion of
dependency jurisdiction because, in the court’s view, marijuana is
not a “‘dangerous drug’”; because the mother’s use did not cause
the newborn’s older sibling in that case to suffer “developmental[]
delay[s]”; and because the mother ceased using marijuana after
being told to stop. (Id. at pp. 1047-1049.) J.A. does not dictate a
result in the parents’ favor. To begin, J.A. is distinguishable.
This is not a case where the mother started using marijuana to
address pregnancy symptoms. Rather, this is a case where
mother was a daily smoker of marijuana for years prior to
pregnancy and merely continued her use while pregnant, and
later started to say that her continued marijuana use was meant
to alleviate one (and later two) of her pregnancy symptoms.
Further, mother did not stop using marijuana during the
pregnancy despite being told to do so. Moreover, to the extent
that J.A. holds that marijuana is not a dangerous drug when
used during pregnancy or that jurisdiction is inappropriate
absent showing of a specific injury to the fetus, we disagree with
J.A. As the Department’s reports in this case relayed to the
juvenile court, both the United States Department of Health and
Human Services and the American Academy of Pediatrics have
issued warnings that the use of marijuana during pregnancy “can
be harmful to a baby’s health and cause many serious problems,
including stillbirth, preterm birth, and growth and
development[al] issues”3; these warnings belie the notion that
3 The U.S. Department of Health and Human Services
warning is archived at (as of
Mar. 6, 2023), and the American Academy of Pediatrics warning
is archived at (as of Mar. 6,
2023). We may take judicial notice of the issuance of their
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marijuana is not a “dangerous drug” vis-à-vis the fetus.
Requiring a specific injury also seems to adopt a “no harm, no
foul” rule that, as noted above, contradicts a central tenet of
juvenile dependency law. If, as is the case, a mother’s use of
alcohol and cigarettes during pregnancy places a fetus at risk
(see Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 498-
499 [alcohol use during pregnancy]; K.C. v. Superior Court (2010)
182 Cal.App.4th 1388, 1391-1392 [nicotine addiction and
cigarette use during pregnancy]), we see no logical basis for
concluding that her use of marijuana—particularly when
ingested by smoking and “bong hits”—is any less risky.
II. Parents’ Substance Abuse
Substantial evidence also supports the juvenile court’s
jurisdictional findings that mother and father abused marijuana
and that their abuse placed Camila at substantial risk of
suffering serious physical harm or illness. Substantial evidence
supports the court’s finding of drug abuse because (1) mother and
father’s use of marijuana was longstanding (In re R.R. (2010) 187
Cal.App.4th 1264, 1284 [noting parent’s “long history of
methamphetamine use”]), and (2) the parents did not halt their
use—either mother’s direct ingestion or father’s continued
smoking near mother while she was pregnant—despite being
warned that use during pregnancy endangered the fetus, and the
parents’ inability to stop presages their continued use while
caring for Camila as an infant. (In re T.V. (2013) 217
Cal.App.4th 126, 133 [“A parent’s past conduct is a good predictor
of future behavior.”]; Troy D., supra, 215 Cal.App.3d at pp. 899-
900 [“prenatal use of dangerous drugs by a mother is probative of
warnings, albeit not the hearsay of the substance of those
warnings. (Evid. Code, §§ 459, 452.)
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future child neglect”].) Substantial evidence also supports the
court’s finding that the parents’ drug abuse poses a risk to
Camila moving forward. Risk to a child from substance abuse
can be established by (1) proof of “‘an identified, specific hazard
in the child’s environment,’” or (2) proof that the child is of
“tender years,” in which case “the finding of substance abuse is
prima facie evidence of the inability of [the] parent . . . to provide
regular care resulting in a substantial risk of physical harm.” (In
re Drake M. (2012) 211 Cal.App.4th 754, 766-767 (Drake M.).)
Because Camila is not yet six years old (In re Christopher R.
(2014) 225 Cal.App.4th 1210, 1219), she is a child of tender years
and the tender years presumption applies and satisfies the
Department’s burden. Although the continued validity of the
tender years presumption is before our Supreme Court in In re
N.R., review granted August 24, 2022, S274943, it is still the law
today. What is more, father is continuing to smoke marijuana,
and second-hand marijuana smoke poses a risk to children. (In re
Alexis E. (2009) 171 Cal.App.4th 438, 452.)
The parents resist this conclusion with what boil down to
two groups of arguments.
First, they argue that they are merely marijuana users (not
marijuana abusers) under the definition of “substance abuse” set
forth in Drake M., supra, 211 Cal.App.4th at pp. 766-767. Drake
M. held that a parent engages in “substance abuse” only if (1) a
medical professional has diagnosed the parent as having a
substance abuse problem, or (2) the parent’s substance abuse
meets the definition of a substance abuse problem as defined by
the Diagnostic and Statistical Manual of Medical Disorders
(DSM). (Id. at p. 766, italics added.) As have several other
courts, we decline to follow Drake M. to the extent it purports to
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require such a showing in all cases. (In re Rebecca C. (2014) 228
Cal.App.4th 720, 726; Christopher R., supra, 225 Cal.App.4th at
p. 1218; In re K.B. (2021) 59 Cal.App.5th 593, 601.) And even if
we were to follow the path blazed by Drake M. by looking to the
DSM, substantial evidence supports a finding of “substance
abuse” under the most recent, fifth edition of the DSM. That
edition replaced the definition of “substance abuse” with the
broader classification of “substance use disorder,” which is met
when two or three of 11 enumerated factors exist (Christopher R.,
at p. 1218, fn. 6), and those factors include (1) taking the
substance in larger amounts or for longer than a person is meant
to, (2) wanting to cut down or stop using the substance but not
managing to, and (3) using substances, even if it puts a person or
others in danger. (Elizabeth Hartney, DSM 5 Criteria for
Substance Use Disorders, Verywell Mind (Aug. 25, 2022),
archived at [as of Mar. 6, 2023].)
Here, the parents’ use of marijuana is longstanding and
continued despite the risk it posed to Camila. Although the
parents claim to have held the belief that there was nothing
wrong with ingesting marijuana while expecting a child, they
were nevertheless told by a medical professional to stop using
and refused to do so. (See In re Gabriel K. (2012) 203 Cal.App.4th
188, 197 [“One cannot correct a problem one fails to
acknowledge.”].)
Second, the parents argue that drug use is not enough by
itself to justify dependency jurisdiction; that a showing of risk of
harm to the child is needed; and that that showing of risk is
missing here. The parents’ first two points are correct, but their
last point is incorrect. “[D]rug use or substance abuse, without
more, is an insufficient ground to assert jurisdiction in
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dependency proceedings . . .” because there must be a link
between that drug abuse and risk to the child. (L.W., supra, 32
Cal.App.5th at p. 849.) But, as explained above, there is
sufficient evidence of that link here. The parents argue there is
no risk because the family home is well stocked with food and
baby supplies and because Camila has not suffered any harm
while in parents’ care. However, these considerations do not
rebut the tender years presumption because, if the absence of
injury were enough, proof of a specific, identified hazard would
always be required and the tender years presumption would
cease to exist; that is not the law. The parents next argue that
mother had four negative drug tests in September 2021. While
mother’s efforts at sobriety are encouraging and praiseworthy,
they come after years of drug use. As did the juvenile court here,
courts have long concluded that the risk arising from
longstanding use is usually not ameliorated by a short, recent
period of sobriety. (E.g., In re Clifton B. (2000) 81 Cal.App.4th
415, 423-424 [200 days insufficient to convince juvenile court that
a relapse would not occur]; In re Amber M. (2002) 103
Cal.App.4th 681, 686-687 [relapse following 300 days of
sobriety].) Father is in the same situation but goes on to insist
that the “science” does not support the notion that mother’s
marijuana use will transmit the drug to Camila through
breastmilk, despite the above-referenced warnings that indicate
just such a danger. The parents lastly cite In re B.T. (2011) 193
Cal.App.4th 685, 691 in support of their argument that there is
no risk. There, however, the mother’s “regular[]” drinking of beer
did not place her infant child at risk when mother was able to
stop drinking “cold turkey” for a period of more than two months,
which meant she was not “in the grip of a serious addiction.” (Id.
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at pp. 693-694.) Here, however, mother and father have been
ingesting marijuana for years, continued to do so despite the risk
it posed to Camila during mother’s pregnancy, and have not
shown a sufficient period of sobriety to rebut the tender years
presumption in this case.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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