In re B.D. CA2/2 ( 2021 )

Filed 3/11/21 In re B.D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re B.D. et al., Persons B307250
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. 20CCJP01715)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MARTIN W.,
Defendant and Appellant.
THE COURT:
Martin W. (father) appeals from the juvenile court’s orders
exerting dependency jurisdiction over his two minor children
under Welfare and Institutions Code section 300, subdivision (b)1,
and removing them from his custody. After reviewing the
juvenile court record, father’s court-appointed counsel informed
this court he could not find any arguable issues to raise on
father’s behalf. Counsel advised father that he could seek
permission from us to file a brief raising any contentions or
arguments he wished us to consider. (In re Phoenix H. (2009) 47
Cal.4th 835.)
Father filed a 10-page brief in which he contends the
evidence was insufficient to support the jurisdictional finding
against him. Finding no merit to father’s contentions, we affirm
the juvenile court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2017, father and E.D. (mother) were living in
Ohio when their son B.D. was born. In March 2019, father along
with two friends moved into a vacant house in Sierra Madre,
California, purportedly owned by his uncle. Back in Ohio, mother
gave birth to another child, K.D., in July 2019, and five months
later in December 2019, mother, her sister Sara D. (Sara), and
both children came to live with father.
In late-February 2020, paramedics and police responded to
the Sierra Madre home after B.D. had fallen into the ungated
swimming pool. Mother was inside the home taking a nap with
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K.D. Sara and her friend Tanica C. (Tanica), who also lived at
the house part-time, were in a room behind the garage when they
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 Later that day, mother stated that she was sitting in the
patio with Sara when B.D. fell into the pool.
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heard B.D. screaming. B.D. was face down in the pool and was
not conscious when Sara jumped in to rescue him. Tanica
performed CPR and “after the second [chest] compression [B.D.]
regained consciousness, threw up water, and was gasping for air.”
Paramedics removed B.D. and he was hospitalized overnight for
observation due to risk for neurological damage, cerebral edema,
and arrhythmia.
The responding police officer smelled a strong odor of
marijuana in the area indicating recent usage. In the room
behind the garage, police found three marijuana bongs, two
marijuana pipes, other drug paraphernalia and marijuana. A
sippy cup was found next to the marijuana. The main house was
dirty with “trash, dirty diapers, dangerous cleaning chemicals,
and used feminine tampons on the floor in the bathroom” near
where K.D. was sleeping. There was also a makeshift playpen
with dirty blankets inside.
Father returned from a business trip in Las Vegas. He
acknowledged that mother and Sara smoke marijuana
“occasionally” but denied that he had any kind of substance abuse
problem and said that everyone “kind of pitch[es] in with regard[]
to caring for the children.” Sara and Tanica both admitted
marijuana use and that they were feeling the effects of it until
the adrenaline of the incident, but both later said they were not
under the influence when B.D. fell into the pool. Mother
appeared to be under the influence when speaking to B.D.’s nurse
at the hospital. She stated she smokes marijuana about three
times a week when father is home with the children.
The Los Angeles County Department of Children and
Family Services (Department) conducted a follow-up visit in early
March 2020. Father acknowledged that he and mother smoked
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marijuana but maintained that the children were always
supervised when they did so. Following that visit, father,
mother, Sara, Tanica, and father’s two housemates all tested
3
positive for marijuana.
In mid-March 2020, the Department made a second visit to
the Sierra Madre residence prompted in part by (1) father’s
failure to take the children to their scheduled forensic medical
exams; (2) mother’s inconsistent statements related to her
whereabouts when B.D. fell into the pool; (3) concerns over the
positive drug tests recorded by all the inhabitants of the house;
and (4) because father had been served with an eviction notice.
One of father’s housemates became angry and agitated and
started to use foul language in response to the social worker’s
questions, stating that “[w]hoever thinks weed is worse than
alcohol and is being used less responsibly [here] needs to grow
up.”
In late-March 2020, the Department executed a removal
warrant for B.D. and K.D. B.D. had a bruise on the left side of
his face on the cheek bone close to the eye. Sara reported that a
week earlier she had been babysitting B.D. when he fell and hit
his face on a chair. Father called the social workers
“kidnapp[ers]” and “baby snatcher[s]” who brought “police with
guns” to take his children and complained that “this is a fascist
country.” Father stated that he was not home but was told “by
someone” that B.D. fell and hit his face while playing. Father
started to use foul language and called the social worker “a
psychopath.” He stated that B.D. is “a descendant of apes” and
3 Father and mother retested one week later and their levels
of marijuana had increased – in father’s case by a multiple of
three.
4
will get hurt throughout his life, and claimed that father himself
had bruises on his face and body when growing up and it was not
a concern.
On March 25, 2020, the Department filed a petition asking
the juvenile court to exert dependency jurisdiction over B.D. and
K.D. on eight grounds, four of which are pertinent to this appeal:
(1) mother placed B.D. in a “detrimental and endangering
situation” by allowing Sara and Tanica “known abusers of
marijuana to supervise [B.D.] while under the influence of
marijuana” resulting in the child being “found inside an un-gated
pool face down” (§ 300, subd. (b)); (2) mother is a current abuser
of marijuana, which renders her unable to provide “appropriate
parental care and supervision” for the children who are both “of
such young age as to require constant care and supervision”;
father knew of mother’s substance abuse and his failure to
protect the children placed them at risk of serious harm (id.); (3)
father has a history of substance abuse and is a current abuser of
marijuana, which renders him unable to provide “appropriate
parental care and supervision” for the children who are both of
“such young age as to require[] constant care and supervision”
and which placed them at risk of serious harm (id.); and (4)
mother has mental and emotional problems, which render her
incapable of providing the children with appropriate parental
care and supervision, and places the children at risk of serious
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physical harm, damage and danger (id.).
From March to July 2020, father tested positive for
4 The juvenile court did not sustain the other four allegations
asserted as a basis for dependency jurisdiction, so they are not
relevant to our analysis.
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marijuana six times and missed two other drug tests—mother
tested positive eight times. The levels shown by both parents
were “extremely high” and suggested chronic and recent use.
The juvenile court held the jurisdictional and dispositional
hearing on August 12, 2020. Father requested and was granted
presumed father status with respect to K.D. The court found
sufficient evidence to sustain the four allegations described
above, and also found clear and convincing evidence that leaving
the children with mother and father would place them at
substantial risk of harm. The court ordered reunification
services, and indicated that it would consider liberalizing
visitation and returning the children to father if “the levels start
going down” and if he could “reduce the use” of marijuana, so that
“there is a parent who can appropriately monitor [the] kids or the
safety issues for the kids.”
Father timely appeals.
DISCUSSION
There is an uncontested basis for dependency jurisdiction
in this case. “Because the juvenile court assumes jurisdiction of
the child, not the parents, jurisdiction may exist based on the
conduct of one parent only.” (In re J.C. (2014) 233 Cal.App.4th 1,
3.) The court assumed jurisdiction based on the conduct of both
parents. Mother did not appeal and her conduct alone justifies
jurisdiction. We may decline to address the evidence supporting
the jurisdictional findings against father. (Id. at p. 4.)
Although the sustained petition against mother establishes
a sound basis for dependency jurisdiction over the minors, we
may exercise our discretion and reach the merits of father’s
claims. (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763
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(Drake M.).) After reviewing the record, we conclude that
substantial evidence supports the court’s findings against father.
A juvenile court may exercise dependency jurisdiction over
a child if “[t]he child has suffered, or there is a substantial risk
that the child will suffer, serious physical harm . . . by the
inability of the parent . . . to provide regular care for the child due
to the parent’s . . . substance abuse.” (§ 300, subd. (b)(1).) In
enacting section 300, the Legislature intended to protect children
who are currently being abused or neglected, “and to ensure the
safety, protection, and physical and emotional well-being of
children who are at risk of that harm.” (§ 300.2.) The
Legislature has emphasized that a child’s well-being depends on
“a home environment free from the negative effects of substance
abuse . . . .” (§ 300.2.) Risk to a child from substance abuse can
be established either 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 a parent . . . to provide
regular care resulting in a substantial risk of physical harm.”
(Drake M., supra, 211 Cal.App.4th at pp. 766-767, italics
omitted.)
Substantial evidence supports the juvenile court’s finding
that B.D. and K.D. are at substantial risk of serious physical
harm due to father’s long-standing use and abuse of marijuana.
To begin, both children are under the age of four years which
means they are children of tender years, and thus risk to them is
rebuttably presumed. (In re Christopher R. (2014) 225
Cal.App.4th 1210, 1219 (Christopher R.) [children six years old or
younger are considered children of ‘“tender years’”].)
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Furthermore, while section 300.2 does not provide that any
drug use by a parent dictates the exertion of jurisdiction, “the
‘negative effects’ referenced in [this section] must be of the sort
likely to result in serious physical harm.” (In re Destiny S. (2012)
210 Cal.App.4th 999, 1005.) As the juvenile court noted, father,
mother, and all the adults living in the Sierra Madre home use
marijuana, leaving no sober adult to tend to the children. B.D.
has not only suffered “serious physical harm or illness” in two
separate incidents within the space of one month in early 2020 as
evidenced by his almost drowning in the backyard pool and then
suffering a facial injury near to his eye, but there is a substantial
risk the inattentiveness of the adult “babysitters” will further
endanger the children’s physical health and safety.
The gist of father’s brief is that there was insufficient
evidence “that marijuana use has negatively impacted our
capability to live” and that the facts were “twisted obviously and
embarrassingly” to show substance abuse. We address each of
father’s contentions in turn.
First, we are unpersuaded by father’s claim that his
marijuana use cannot constitute “abuse” because it is legal in
California. He is wrong. (In re Alexis E. (2009) 171 Cal.App.4th
438, 452 [“even legal use of marijuana can be abuse if it presents
a risk of harm to minors”].) Marijuana use is treated similar to
alcohol use, and father failed to address its effects in his home.
(In re Samkirtana S. (1990) 222 Cal.App.3d 1475 [mother’s abuse
of alcohol was considered cause for finding her children were at
risk of harm even though use of alcohol is legal], disapproved on
other grounds in In re Horton (1991) 54 Cal.3d 82, 92-93.)
Next, father argues that he is not engaged in “substance
abuse” as defined in Drake M., supra, 211 Cal.App.4th 754, and
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“[t]he evidence of parent’s substance use is, at most, that they
smoked marijuana in the past.” First, we reject father’s Drake M.
argument. Drake M. holds that a parent engages in “substance
abuse” only if (1) a medical professional has diagnosed the parent
as having a current substance abuse problem, or (2) the parent’s
substance abuse meets the definition of a substance abuse
problem as defined by The American Psychiatric Associations
Diagnostic and Statistical Manual of Mental Disorders (DSM).
(Drake M., at p. 766.) We join several other courts in declining to
follow Drake M. to the extent it purports to 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.)
Second, even if we were to follow Drake M., the most recent
version of the DSM defines “substance abuse” to include drug use
resulting in a failure to fulfill major role obligations (such as
neglect of the household) as evidenced by the conditions of the
Sierra Madre residence on the day of the incident. (In re Natalie
A. (2015) 243 Cal.App.4th 178, 185.) Father attributes the
unsanitary condition of the home to the two dogs “which had a
habit of taking tampons and other trash from the litter bins and
throwing them about the house,” to his absence due to a business
trip, and to “the remaining members of the household” who “were
not used to cleaning up after the dog[s] and the children.” We
need not address father’s stated reasons for the unsanitary
condition of the home as it was not the basis for a jurisdictional
finding. Third, father’s (and mother’s) drug test results in the
weeks and months following the removal of B.D. and K.D. which
showed “extremely high” levels indicated that their use was not
only “in the past” but was chronic, ongoing and recent.
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Next, father argues that there is a “cultural bias” against
the use of marijuana. He suggests that caffeine could have been
the cause of mother’s daytime sleeping and Sara and Tanica’s
inattentiveness, and that this cultural bias against marijuana is
evidenced by the Department’s failure to conduct any “inquiry as
to the caffeine use of any residents of the house.” There could be
many reasons for the inattentiveness of the adult members of the
household on the day of the incident, but the police report
indicated “a strong odor of marijuana” (not coffee, chocolate, or
other products containing caffeine) and the presence of bongs,
pipes, other drug paraphernalia, and marijuana itself. And, Sara
and Tanica admitted recent usage of marijuana and being under
the influence, although they later said they were not feeling the
effects when B.D. fell into the pool.
Lastly, father argues that he is being “charged with
knowing the unknowable, that the use of marijuana would cause
an accident by inducing behavior that marijuana is [sic] not been
scientifically shown to induce.” He is mistaken. Father is not
held to the level of a pharmacologist with respect to marijuana,
his responsibility stems from the lack of appropriate supervision
for his children that led to the swimming pool incident in the first
place, and father’s conduct thereafter. Father was aware that
mother—and indeed all the adult members of the household—
smoked marijuana and would be responsible for the children’s
care while he attended business trips.
Here, even after the pool incident, B.D. suffered a further
injury due to Sara’s inattentiveness. Father has consistently
dismissed the long term effects of B.D.’s near drowning, and
displayed a cavalier attitude with respect to B.D.’s facial bruise,
while refusing to address his marijuana use. In evaluating the
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risk of future harm, “[a] parent’s ‘“[p]ast conduct may be
probative of current conditions” if there is reason to believe that
the conduct will continue.’” (In re Kadence P. (2015) 241
Cal.App.4th 1376, 1383-1384, superseded by statute on other
grounds in In re A.M. (2020) 47 Cal.App.5th 303, 322.)
The juvenile court did not have to wait until B.D. or K.D.
was seriously injured to assume jurisdiction and take the steps
necessary to protect the children. (In re Heather A. (1996) 52
Cal.App.4th 183, 194.)
DISPOSITION
The juvenile court’s orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
——————————————————————————————
LUI , P. J., CHAVEZ, J., HOFFSTADT, J.
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