In re Madison v. CA2/2 ( 2021 )

Filed 3/25/21 In re Madison V. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 MADISON V., et al., B306729
Persons Coming Under the
Juvenile Court Law. (Los Angeles County
Super. Ct. No. 20CCJP01090A-B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
LESLIE F.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Daniel Zeke Zeidler, Judge. Affirmed.
Lori Siegel, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rodrigo A. Castro-Silva, Acting County Counsel, Kim
Nemoy, Assistant County Counsel and Jane Kwon, Principal
Deputy County Counsel, for Plaintiff and Respondent.
******
The juvenile court exerted dependency jurisdiction over
mother’s nine-year-old and 10-month-old daughters on the basis
of mother’s longstanding and continued use of
methamphetamine, including while pregnant with the younger
child. On appeal, mother argues that the court’s assertion of
jurisdiction is unsupported by substantial evidence. We disagree,
and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Leslie F. (mother) has two children with two different
fathers—namely, Madison (born in June 2011) and Danielle (born
in February 2020).
Mother has been using methamphetamine, on and off, for
over 16 years. Prior to Madison’s birth, mother used the drug
almost daily. Although mother denied any and all use after
Madison’s birth in 2011, she tested positive for
methamphetamine four times between March and December of
2019. Three of those times was while pregnant with Danielle,
and two of those tests revealed “very high” levels of the drug in
mother’s body. Mother has been very secretive about her drug
use, as no one has caught her in the act of ingesting the drug.
Because mother had not used any methamphetamine
immediately before Danielle’s birth, both mother and Danielle
tested negative for any drugs at time of birth. Fortunately,
mother’s prior drug use while pregnant did not have any effect on
Danielle’s development, as she was born healthy.
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Mother was unemployed and struggling financially. She
was also homeless, living in a recreational vehicle (RV) parked on
a street in an industrial area with a lot of traffic; the RV had no
electricity or running water. Mother was in denial about her
pregnancy with Danielle and made a conscious decision not to
seek prenatal care because “[she] did not want to believe [she]
was pregnant.” Mother opted instead to obtain medical care at
the emergency room of the hospital if she had any complications.
Mother had purchased no baby supplies and made no
arrangements for childcare at the time of Danielle’s birth.
Although mother sent Madison to live with her paternal
grandparents, mother occasionally had Madison stay with her in
the RV. When Madison stayed, she slept on blankets on the floor
and did not shower for extended periods of time; after one visit,
Madison contracted a serious head lice infestation.
II. Procedural background
A. Petition
On February 25, 2020, the Los Angeles County Department
of Children and Family Services (the Department) filed a petition
asking the juvenile court to exert jurisdiction over Madison and
Danielle based on mother’s “history of substance abuse” and
“current abuse[]” of methamphetamines and Danielle’s father’s
“fail[ure] to take action to protect” her; these shortcomings, the
petition went on to allege, “endanger[s]” the girls’ “physical
health and safety and places [them] at risk of serious physical
harm, damage and danger” (thereby rendering jurisdiction
appropriate under Welfare and Institutions Code section 300,
subdivision (b)(1)).1
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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The juvenile court detained both girls from mother and
ordered her to submit to random drug testing.
B. Interim period
While the Department’s petition was pending in juvenile
court, mother used methamphetamine on March 8, 2020. At the
end of March, mother did not appear for a further drug test. In
mid-May, mother checked into a residential drug treatment
program—and checked herself out the very next day.
C. Jurisdictional and dispositional hearing
On July 8, 2020, the trial court held the jurisdictional and
dispositional hearing. The court sustained the jurisdictional
allegation. In so sustaining, the court relied upon mother’s
denial of drug use during her pregnancy and her continued use of
drugs; that Danielle was at risk as a child of “tender years”; and
that Madison, while not a child of tender years, was still “very
young” and at risk by virtue of mother’s failure or refusal to seek
treatment for her longstanding drug abuse and its
manifestations, including her filthy RV.
The court then removed the girls from mother’s custody;
granted her monitored visitation; and ordered reunification
services. The juvenile court terminated jurisdiction for Madison
and placed her in the home of her father.
D. Appeal
Mother filed this timely appeal.
DISCUSSION
Mother argues that the juvenile court’s jurisdictional ruling
is not supported by the record. A juvenile court may exert
dependency jurisdiction under section 300, subdivision (b)(1) if,
among other things, “there is a substantial risk that [a] child will
suffer[] serious physical harm or illness[] as a result of . . . the
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inability of the parent . . . to provide regular care for the child due
to the parent’s . . . substance abuse.” (§ 300, subd. (b)(1).) In
evaluating whether a juvenile court’s jurisdictional findings are
supported by the record, we ask only whether “substantial
evidence, contradicted or uncontradicted, supports” those
findings. (In re I.J. (2013) 56 Cal.4th 766, 773.) In so doing, we
consider the record as a whole, and resolve all conflicts and draw
all reasonable inferences to support the juvenile court’s findings;
we do not reweigh the evidence. (In re Lana S. (2012) 207
Cal.App.4th 94, 103.)
As the plain language of section 300, subdivision (b)(1)
makes clear, dependency jurisdiction must be based on more than
a parent’s use of drugs. (In re L.C. (2019) 38 Cal.App.5th 646,
654 [parent’s “‘use of methamphetamine, without more, cannot’
support jurisdiction”]; In re Destiny S. (2012) 210 Cal.App.4th
999, 1003 [same].) To warrant the exercise of dependency
jurisdiction, there must also be a “nexus” between the parent’s
drug use and the risk of harm to the child by virtue of the
parent’s “failure to ensure [that the child] w[as] safely cared for
and supervised.” (In re Natalie A. (2015) 243 Cal.App.4th 178,
185 (Natalie A.).) 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 the 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, 766-767 (Drake M.),
italics omitted.)
Substantial evidence supports the juvenile court’s
jurisdictional findings.
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There is substantial evidence of mother’s substance abuse.
Mother admitted to using methamphetamines for at least 16
years, including a period of near-daily drug use. In the last year,
she repeatedly used methamphetamine while pregnant with
Danielle and used it twice more after the Department initiated
these dependency proceedings. (In re Christopher R. (2014) 225
Cal.App.4th 1210, 1217 (Christopher R.) [“missed” test is “the
equivalent of a positive test result”].) She has also refused to
address her abuse by denying it, by missing drug tests, and by
not attending drug treatment services.
There is also substantial evidence of risk to the children
arising from mother’s substance abuse. Danielle is
approximately one year old, and is therefore a child of “tender
years.” (Christopher R., supra, 225 Cal.App.4th at p. 1219.) As
such, mother’s drug abuse is presumed to place Danielle at risk of
physical harm due to her need for mother’s constant attention.
Madison—at age nine—is beyond her tender years (although not
by a lot), but substantial evidence supports the juvenile court’s
finding that mother’s methamphetamine use places Madison at
substantial risk of serious physical harm. The danger posed by
mother’s drug use is heightened by its longstanding history (In re
R.R. (2010) 187 Cal.App.4th 1264, 1284 [noting how parent’s
“long history of methamphetamine use” contributed to risk]), by
mother’s denial of drug use (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”]), and by mother’s continued use of drugs and
refusal to seek treatment after this dependency proceeding began
and hence at a time when she is aware of the importance of
confronting and addressing her drug use (see also, e.g. In re Lana
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S., supra, 207 Cal.App.4th at pp. 105-106 [“lengthy history
of drug abuse, denial of any drug problem,” and “refusal
to voluntarily drug test and enter drug treatment” sufficient
evidence to support jurisdiction and removal], but, cf. In re L.C.,
supra, 38 Cal.App.5th at p. 653 [risk reduced when parent
“modifie[s] his conduct when he realize[s] that he could lose [his
child]”]). And mother’s care of Madison—albeit limited in
duration due to mother’s decision to place Madison with the
paternal grandparents—nevertheless shows that mother’s drug
use may be placing Madison at risk of physical harm: Mother let
Madison go weeks without bathing, sent her back to the paternal
grandparents with a severe infestation of head lice, and would
take random naps in the middle of the day that precluded her
from watching Madison. Although Madison has yet to be
seriously harmed by the inattentiveness arising out of mother’s
drug use, that is largely because she only spends a limited
amount of time in mother’s custody. (Accord, In re Alexzander C.
(2017) 18 Cal.App.5th 438, 450 [“‘the only reason why the[]
children are doing fine is because they . . . have relative support
. . .’”], overruled on other grounds in Conservatorship of O.B.
(2020) 9 Cal.5th 989, 1010.) More to the point, “[a] juvenile court
‘need not wait until a child is seriously abused or injured to
assume jurisdiction and take the steps necessary to protect the
child.’” (In re L.W. (2019) 32 Cal.App.5th 840, 849, quoting In re
R.V. (2012) 208 Cal.App.4th 837, 843.) In light of the significant
potential for harm boiling beneath the surface, there is
substantial evidence of risk to Madison.
Mother responds with what boils down to two arguments.
First, mother argues that the record shows, at most,
“substance use,” but section 300 requires proof of “substance
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abuse” within the meaning of Drake M., supra, 211 Cal.App.4th
754. 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 American Psychiatric Association’s Diagnostic
and Statistical Manual of Mental Disorders (DSM). (Id. at p. 766,
italics added.) To begin, we join several other courts in declining
to follow Drake M. to the extent it purports to require such a
showing in every case. (In re Rebecca C. (2014) 228 Cal.App.4th
720, 727; Christopher R., supra, 225 Cal.App.4th at p. 1218.)
Further, the evidence in this case satisfies Drake M.’s second
showing in any event because the DSM’s definition reaches the
“‘“failure to fulfill major role obligations at work, school or
home”’” (Natalie A., supra, 243 Cal.App.4th at p. 185), and the
failure to fulfill a major role obligation at home includes “‘“neglect
of children or [the] household”’” (ibid.). Here, mother is
unemployed and thus has failed to have a major role obligation at
work; mother has been neglectful of the girls by refusing to
obtain prenatal care and using methamphetamines while
pregnant with Danielle, by allowing Madison to go weeks without
bathing and to become infested with head lice, and by napping
supposedly from exhaustion while caring for Madison; and
mother has been neglectful of the household by maintaining an
unsanitary living space for Madison. What is more, Madison
reported that mother and Danielle’s father “argue a lot,” and
Madison’s father indicated that mother instigated domestic
violence against him when they lived together, which is another
sign of substance abuse under the DSM. (Natalie A., at p. 185
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[“‘“interpersonal problems caused by or exacerbated by the effects
of the substance,”’” such as “‘“physical fights”’”].)
Second, mother analogizes this case to other cases where
the children were “receiving excellent care” despite their parent’s
drug use during that parent’s “private moments.” (In re L.W.,
supra, 32 Cal.App.5th at p. 850; In re R.R., supra, 187
Cal.App.4th at p. 1284.) Each of the cases mother cites, however,
are factually distinguishable. In In re James R. (2009) 176
Cal.App.4th 129, the court found insufficient evidence to exert
jurisdiction where the mother stopped all drug use after the
children were born (id. at p. 137); mother’s drug use—and the
risk it poses—did not stop with Madison’s or Danielle’s births. In
In re J.A. (2020) 47 Cal.App.5th 1036 and In re David M. (2005)
134 Cal.App.4th 822 (David M.), the court found insufficient
evidence to exert jurisdiction where the mothers had consumed
marijuana while pregnant and their babies were born healthy (In
re J.A., at pp. 1048-1049; David. M., at pp. 829-830); mother’s
drug use here involves a more harmful drug and is more
longstanding, has persisted despite juvenile court supervision,
and has manifested itself in neglectful behavior. In Jennifer A. v.
Superior Court (2004) 117 Cal.App.4th 1322, the court found
insufficient evidence to exert jurisdiction where the mother was
gainfully employed and had approximately “84 drug-free” tests,
and the children were healthy and well adjusted, even though the
mother tested positive for marijuana once and missed nine tests
(id. at pp. 1326-1327); mother here is unemployed and her drug
use has been confirmed on at least four occasions when she tested
positive for methamphetamine. We appreciate that cases
involving a parent’s drug use fall along a spectrum: Mother’s
drug use and the risks it poses in this case is not located at the
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more egregious end of that spectrum, but—as these cases
illustrate—it is located past the point at which dependency
jurisdiction is appropriate. That is all we may examine under
substantial evidence review.
Because mother’s challenge to the jurisdictional finding
fails, her challenge to the removal order based on the invalidity of
the jurisdictional finding also fails.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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