In re O.G. CA2/2 ( 2021 )

Filed 3/19/21 In re O.G. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 O.G., a Person Coming Under B307109
the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 20CCJP02106)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
N.G.,
Defendant and Appellant;
O.G.,
Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Philip L. Soto, Judge. Affirmed.
Christine E. Johnson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.
Aida Aslanian, under appointment by the Court of Appeal,
for Minor.
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The juvenile court sustained a dependency petition against
J.R. (Father) and appellant N.G. (Mother). (Welf. & Inst. Code,
§ 300, subd. (b)(1).)1 At disposition, the court removed appellant
O.G., Mother’s newborn son, from parental care and custody. We
conclude that substantial evidence supports the orders.
The record shows Mother is a habitual drug abuser who
used methamphetamine “all day, every day” since 2017, tested
positive for it at prenatal exams and refused entreaties to begin a
drug abuse treatment program while pregnant. Chronic drug use
is prima facie evidence of her inability to provide regular care to a
newborn. Though Mother entered a drug treatment program
after giving birth, when faced with the possibility of losing O.G.,
her drug abuse during pregnancy showed indifference to O.G.’s
safety and justified his removal from her care and custody until
she demonstrates a commitment to sobriety. We affirm.
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1Father did not appeal the court’s orders. Undesignated
statutory references are to the Welfare and Institutions Code.
2
FACTS AND PROCEDURAL HISTORY
O.G. was born in April 2020.2 One month earlier, Mother
tested positive for methamphetamine. O.G.’s gestational
exposure to illicit drugs was reported to respondent Department
of Children and Family Services (DCFS).
Mother told a social worker (CSW) “she did not attend all
her prenatal care visits due to her using methamphetamines
throughout her pregnancy.” Mother’s blood tests during prenatal
exams were positive for methamphetamine in November 2019,
January and March. Despite his drug exposure, O.G. had no
major medical conditions at birth.
Mother told DCFS “there is substance abuse in her home
[and] she would drink alcohol while being high on ‘meth.’ ” She
was willing to enter a residential treatment program because she
does not want to lose O.G. She has a history of depression and
cutting herself but takes no prescribed medications for her
mental health. In 2018, Mother was hospitalized in a mental
health facility for drinking excessively.
Father knew of Mother’s drug use and positive drug tests
during pregnancy. He has used methamphetamine since 2016,
became addicted, and now uses it daily. He and Mother smoked
the drug together during her pregnancy; he realizes this was
“very bad.” Father has another child (not with Mother) but does
not know where the child is or have identifying information.
Father is on probation. He agreed to drug test and enter a
treatment program.
CSW interviewed the paternal grandmother (PGM). PGM
knew Mother and Father used “crystal meth” and marijuana
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2 Unlabeled dates in this opinion refer to the year 2020.
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while living in her garage. She warned them to stop. PGM
opined that they have “a strong substance abuse addiction” and
observed behavioral changes when they used drugs. She stopped
living with them when she realized they would not stop using
drugs. PGM is willing to care for O.G. while the parents receive
treatment. O.G. was placed with PGM.
DCFS filed a dependency petition. As amended, it alleges
that both parents have a history of substance abuse; Mother
currently abuses methamphetamine, marijuana and alcohol,
which she used while pregnant. O.G. requires constant care and
supervision, which Mother and Father are incapable of providing
due to their substance abuse. Mother has mental and emotional
problems resulting in hospitalization, which endangers O.G. and
places him at serious risk of harm. (§ 300, subd. (b).) DCFS
assessed O.G. as being at high risk due to chronic parental
substance abuse.
Mother and Father entered residential drug treatment
programs soon after O.G.’s birth. Father tested positive for
methamphetamine upon entering and negative afterward.
Mother’s program is licensed to take newborns.
At the detention hearing, the court found Father to be
O.G.’s presumed parent. The parents denied the petition. The
court found a prima facie case to detain O.G. because leaving him
in parental custody poses a substantial danger to his wellbeing.
It rejected the family’s request to release O.G. to Mother at her
treatment facility. It found that Mother’s motivation to protect
O.G. is not strong “since she was using while she was pregnant.”
In its jurisdiction report, DCFS reported that Mother has
been enrolled in a residential treatment program for nearly three
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months. Mother’s counselor stated that she was complying with
the program and testing negative for drugs.
Mother expressed shame for using drugs while pregnant
but said it was difficult to stop because she had been a heavy user
for two years. She tried methamphetamine when she was 14 and
used marijuana and alcohol while in middle school. Since 2017,
she has used methamphetamine “all day, every day.” She was in
a car accident while intoxicated and one month pregnant.
Mother was 23 when O.G. was born.
Mother owned up to her past but insisted that she and
Father entered rehabilitation to change their lives and be
responsible for O.G. Father said he and Mother started using
drugs together in 2016. Once, Mother put herself in a treatment
program, showing Father proof of attendance; she also tried to
stop using drugs on her own. She relapsed because friends
brought drugs to the home and everyone would use them. Father
urged Mother to stop using drugs but felt hypocritical because he
was using; he also urged her to stop using alcohol. Father has
used methamphetamine for 11 years, since he was 13 years old.
He was not sober for a single day from 2016 until he began the
drug treatment program in 2020. He is on probation because he
stole cars to get money for drugs.
Mother was initially unaware she was pregnant. She and
Father were “getting high off meth” and Mother was throwing up.
Mother admitted using the drug during this time and tested
positive for it when she went for her first ultrasound. A
substance abuse counselor encouraged Mother to enroll in an
inpatient program during the pregnancy, but she refused.
PGM reported that Mother “was three months pregnant
and she was still in the street using drugs and drinking alcohol.”
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PGM told Mother “not to do things that will harm her and the
baby but she did not listen.” Father and Mother used “meth”
together. PGM is “scared that [when Mother] comes out, she will
relapse.” PGM believes that Mother and Father will continue to
use alcohol and marijuana after their programs because after
“[t]en years of using every day, it is going to be really hard to
rehabilitate in two months.” The parents seemed motivated by
O.G.’s detention.
The parents agreed that PGM is taking good care of O.G.,
who gained six pounds and was strong and healthy. He is being
evaluated because of his prenatal drug exposure. Father
completed a 60-day residential treatment program in June; he
then failed to appear for a drug test in July.
Mother was hospitalized in 2018. She described herself as
depressed, drunk and said she wanted to hurt someone or herself.
Father had no concerns about Mother’s mental health.
The petition was adjudicated on July 29. It was stipulated
that if Mother were called, she would testify that (1) she has been
in an inpatient program since April 4; (2) she has been clean and
sober since March 4; (3) she has completed courses in parenting
and anger management; (4) she receives individual counseling;
(5) she will transition to a sober living program in October;
(6) her current facility has a bed available for O.G.; and (7) she
will follow court orders and work with DCFS to ensure O.G.’s
safety.
A July 28 letter from Mother’s treatment facility stated
that she resided there, was making efforts in her treatment goals
and showed improved attitude and behavior. It recommended
that O.G. live at the facility with Mother because it could help
motivate her recovery.
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Mother asked the court to dismiss the petition. Although
she admittedly used drugs during her pregnancy, O.G. was not
born with drugs in his system and she promptly enrolled in a
treatment program. Mother felt there is no current risk to O.G.
The court found that Mother’s 2018 mental health problems
posed no current risk; however, “what is adversely affecting the
child is the drug abuse and addiction by both of the parents.”
The court sustained allegations that Mother and Father
have a history of substance abuse and currently abuse alcohol,
marijuana, and methamphetamine; Mother abused drugs and
alcohol while pregnant. The parents’ drug use prevents them
from providing regular care and supervision of O.G. The court
dismissed the count relating to Mother’s mental health. The
court declared O.G. a dependent of the court.
At disposition, counsel for O.G. and the parents asked the
court to place O.G. with Mother in her residential treatment
program. DCFS asked the court to keep O.G. in his placement
with PGM. The court found, “I do not have enough here to say
that this child will be safe with the mother for a long-term
situation in that facility.” It applauded Mother’s participation in
a treatment program; however, her chronic drug abuse casts
doubt on her ability to recover in a few months.
The court stated that Mother may reunify with O.G. if she
continues to move in the right direction. It instructed DCFS to
start overnight visits. Mother may breastfeed if she tests
negative for drugs. The court wanted to know more about
Mother’s plans upon leaving the residential facility to be sure she
“will succeed when I give the child to [her].” In short, “I need to
know the child will be safe and the mom will be clean and sober
for good. I don’t want relapses. I don’t want to have the child
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removed again,” which would harm O.G.’s best interests. The
court gave DCFS discretion to release O.G. to his parents, if
appropriate. The parents were ordered to participate in
counseling; a drug and alcohol program with aftercare; and
random or on demand drug testing.
DISCUSSION
1. Standard of Review
Appellants have the burden of demonstrating that no
substantial evidence supports the court’s jurisdictional and
dispositional orders. (In re D.B. (2018) 26 Cal.App.5th 320, 328–
329.) Without reweighing the evidence or evaluating witness
credibility, we resolve all conflicts in favor of the respondent and
draw all reasonable inferences in support of the judgment. (Ibid.;
In re R.T. (2017) 3 Cal.5th 622, 633.)
2. Dependency Jurisdiction Over O.G.
The court has jurisdiction over O.G., regardless of the
merits of Mother’s appeal. A child “ ‘is a dependent if the actions
of either parent bring [him] within one of the statutory
definitions of a dependent.’ ” (In re X.S. (2010) 190 Cal.App.4th
1154, 1161.) “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 sustained the petition based on the conduct of both
parents. Father did not appeal; thus, the court has jurisdiction
over O.G. and we may decline to address the evidence supporting
the findings against Mother. (Id. at pp. 3–4.)
Mother argues that her claim is justiciable, even if the
court has dependency jurisdiction based on the sustained petition
against Father. She asserts that the findings against her formed
the basis for removing O.G. from her care and could prejudicially
impact future dependency proceedings. (In re Drake M. (2012)
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211 Cal.App.4th 754, 762–763.) We exercise our discretion and
review the findings against Mother. (Ibid.)
The court’s task is to determine if a child is at substantial
risk of serious physical harm without court intervention.3 Past
parental conduct “ ‘ “may be probative of current conditions” if
there is reason to believe that the conduct will continue’ ” and the
child needs protection. (In re Christopher R. (2014) 225
Cal.App.4th 1210, 1216.) “The court need not wait for disaster to
strike before asserting jurisdiction. [Citation.] This is why the
statute uses the word ‘risk.’ ” (In re K.B. (2021) 59 Cal.App. 5th
593, 603.)
Parental drug addiction poses such an inherent risk to an
infant requiring constant supervision and care that a “ ‘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 harm.’ ” (In re Christopher R., supra, 225
Cal.App.4th at p. 1219.) Mother and Father are habitual users of
methamphetamine, “ ‘an inherently dangerous drug known to
cause visual and auditory hallucinations, sleep deprivation,
intense anger, volatile mood swings, agitation, paranoia,
impulsivity, and depression.’ ” (In re Alexzander C. (2017) 18
Cal.App. 5th 438, 449, disapproved on other grounds in
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3 There must be proof “[t]he child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm
or illness, as a result of the failure or inability of his or her parent
or guardian to adequately supervise or protect the child, . . . or by
the inability of the parent or guardian to provide regular care for
the child due to the parent’s or guardian’s . . . substance abuse.”
(§ 300, subd. (b)(1).)
9
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) Father
engaged in crime to support their drug habit.
Though Mother was ashamed of using methamphetamine
during pregnancy, she was unable to stop because she had been
using it “all day, every day” since 2017. At her first ultrasound,
she tested positive and a substance abuse counselor urged her to
enroll in an inpatient drug program. Despite knowing the risk to
O.G., she did not enroll in a program and continued to use
methamphetamine. She admitted to a CSW that she used it
throughout her pregnancy, which was borne out by multiple
positive drug tests. Mother skipped some prenatal exams
because she was using methamphetamine.
Mother has abused alcohol and marijuana since middle
school, and first tried methamphetamine at age 14. According to
Father, Mother put herself in a substance abuse treatment
program; however, she relapsed and continued to use drugs and
alcohol afterward. Her addiction is so strong that she was willing
to expose O.G. to the toxic effect of methamphetamine.
Given Mother’s history and inability to protect O.G. during
gestation, the court could reasonably believe she will continue to
use drugs without court intervention. Only the realization that
O.G. was detained motivated Mother to start treatment. The
record supports the exercise of dependency jurisdiction. There is
a substantial risk of serious harm to O.G. Mother’s chronic drug
abuse prevents her from providing regular care for an infant.
3. Disposition Order
Once the court determined that O.G. falls within section
300 and declared him a dependent, it had to decide if he would be
safe in parental care. (Cynthia D. v. Superior Court (1993) 5
Cal.4th 242, 248.) Removal requires proof of a substantial
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danger to the physical health, safety, protection, or physical or
emotional well-being of the child, and that even with the
provision of services there is no reasonable means to protect him
without removal from his parents. (§ 361, subd. (c)(1).)
The court made the required findings. It stated, “Under
[section] 361(c), I find that there is by clear and convincing
evidence grounds that, if the child were returned to the parents
at this time, it would be injurious to the child’s welfare, physical
and emotional. And there is no reasonable means to keep the
child safe without continued removal.”
Mother and O.G. contend that the court improperly shifted
the burden of proof onto Mother to show why O.G. could not live
with her at her residential treatment facility. The record does
not support their contention. The CSW spoke to staff at the
treatment centers where both parents were living. DCFS advised
the court that Mother’s “facility is licensed and allowed to take
children from birth up to the age of 2 years old.”
At the hearing, DCFS argued that O.G. is “safely placed”
with PGM; Mother has “a long history of ongoing substance
abuse” and cannot be trusted with O.G.’s care; and she “has a lot
of work to do” to establish that “she can maintain her sobriety on
a long-term and ongoing basis.” Whatever treatment center staff
might say, it is “simply representations of hope that they have for
the mother where you have an established track record of very
bad judgment to this child’s detriment.”
The court agreed with DCFS. It found Mother “is moving
in the right direction, but she has a long way to go. She has a
chronic history by her own admission in the detention reports, at
least three years. You don’t get over it in three months.” The
court told DCFS to start overnight visits at a slow pace at the
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treatment center, mindful of the risk Mother “falls off the wagon”
when the program ends. The court concluded, “I need to know
the child will be safe and the mom will be clean and sober for
good. I don’t want relapses. I don’t want to have the child
removed again. That is not good for the mental, physical, or
emotional development of the child.”
Substantial evidence supports the decision to remove O.G.
from Mother. Mother has a history of failed attempts at sobriety.
She self-enrolled in a rehabilitation program, then relapsed when
the program ended. By her own admission, “ ‘When I found out I
was pregnant I stopped [using methamphetamine on] my
own. . . . I stayed sober about 3 months.’ . . . When asked when
she began using after the three months sober Mother reported, ‘I
started using again when I moved in with [Father]. I started
using again because it was around.’ ” Mother also admitted to a
drunk driving accident while pregnant.
The court could reasonably find that Mother needs very
little encouragement to lapse into substance abuse. She refused
offers of an inpatient program after testing positive during
pregnancy, despite knowing the dangers posed to O.G. She used
drugs during pregnancy just because methamphetamine “was
around.” PGM believes Mother and Father are strongly addicted
and will resume substance abuse when their programs end.
The “provision of a home environment free from the
negative effects of substance abuse is a necessary condition for
the safety, protection and physical and emotional well-being of
the child.” (§ 300.2.) The goal is to avert the risk of harm to the
child. (Ibid.; In re I.J. (2013) 56 Cal.4th 766, 773.) The court felt
it could not ensure O.G.’s safety without assurances that
Mother’s brief sobriety will last.
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Mother’s daily drug use, her failure to benefit from a prior
drug treatment program and her eagerness to use
methamphetamine merely because it is accessible all point to the
propriety of removal. “Indeed, her use of [methamphetamine]
during the last months of her pregnancy confirmed her poor
judgment and willingness to endanger [O.G.’s] safety due to
substance abuse. Thus, the decision to remove [O.G.] from her
care and custody was supported by substantial evidence.” (In re
Christopher R., supra, 225 Cal.App.4th at p. 1219.)
Appellants argue that the court failed to make factual
findings regarding reasonable alternatives to removal. (§ 361,
subd. (e).) The court knew O.G. could be placed at Mother’s
treatment facility; it expressly rejected this alternative because it
did not believe Mother had overcome a decade of substance abuse
in three months. The court nonetheless authorized overnight
visits for O.G. at the facility and gave DCFS discretion to allow
O.G. to live with Mother. The court considered the options and
made a reasonable choice.
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DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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