In re J.M. CA2/2 ( 2021 )

Filed 4/12/21 In re J.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.M. et al., Persons Coming B305486
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. DK23780)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JASON M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael C. Kelley, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sarah Vesecky, Deputy County
Counsel, for Plaintiff and Respondent.
After declaring dependency jurisdiction in 2017, the
juvenile court gave appellant Jason M. (Father) custody of his
young children, despite his history of drug abuse. Supplemental
petitions were sustained when Father continuously disobeyed
orders to undergo drug testing. After years of noncompliance, the
court removed the children from Father’s custody in 2020.
(Welf. & Inst. Code, § 387.)1 We conclude that substantial
evidence supports the removal order and affirm.
FACTS AND PROCEDURAL HISTORY
Father has three children who are the subject of this
appeal: J.M. (born in 2012), L.M. (2013) and Jon M. (2015). His
son Jason Jr. (born in 2002) is not a party. The court sustained a
petition against W.M., the dependent children’s mother (Mother),
who did not appeal.
In July 2017, Father called police to report that Mother hit
five-year-old J.M. with an extension cord, leaving welts on his
buttocks, hips and thigh. J.M. told an officer, “mommy hit me
with a cord.” His injuries—long linear looping lacerations—were
photographed. J.M. told hospital medical staff that Mother hit
him in anger with a cord.
A social worker (CSW) from respondent Department of
Children and Family Services (DCFS) interviewed the family.
Father said Mother’s use of methamphetamine causes her to
display violent behavior such as throwing objects and hitting
him. Father was at work when Mother hit J.M. CSW saw marks
and bruises on J.M. Jason Jr. reported that a month earlier, J.M.
said “mommy hit me with a shoe.”
__________________________________________________________
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
Mother claimed J.M.’s leg was injured by a car door. Later,
she said “nobody knows” who inflicted the injuries, though J.M.
was with her the entire day while Father was at work. She
accused Father of hitting her with a closed fist and shaking her;
during parental fights the children became “really emotional.”
Later, she said that there was only one physical fight and the
children did not witness it. Mother said Father introduced her to
“crystal meth” to add “fun” to their marriage. He stopped using
methamphetamine in April or May of 2017. Mother refused to
drug test or cooperate with a police investigation into child abuse.
Father tested positive for cannabinoids. He claimed to use
marijuana “very infrequently” to relieve back pain.
Jason Jr. disclosed that when Mother and Father argue
“every other night,” he takes his young siblings upstairs because
it is “really bad.” He denied seeing physical violence. When he
comes home from school, he takes care of his siblings because
Mother is “passed out on the couch.”
A petition filed in August 2017 alleged that Mother
physically abused J.M., inflicting serious harm and endangering
his siblings; Mother and Father engaged in violent altercations in
the children’s presence; and Father and Mother have a history of
substance abuse and currently abuse drugs. DCFS removed the
children from Mother, citing a high risk of physical abuse and
neglect. They remained in Father’s care.
The court found a prima facie case to detain the children,
who were placed with Father. Father was referred to counseling
for domestic violence and substance abuse, parenting education
and random drug testing. He was ordered not to monitor
Mother’s visits.
3
Father denied engaging in domestic violence, saying
Mother made false accusations to prevent him from living with
the children, who love him. Father knew that Mother was using
methamphetamine: She was violent, hit him, smashed things,
lost weight, and spent nights away from home. She left the
children with “random strangers” while he worked long hours; he
relied on neighbors to tell him if anything strange was occurring
in his home. He never thought she would hurt the children.
Father said he formerly used methamphetamine but currently
uses only marijuana.
DCFS deemed Father negligent for allowing Mother to tend
to the children while using methamphetamine; she left them
while getting “high” and was unable to properly care for them.
The parents had a physical fight after Mother stayed out all night
and Father “jumped her case.” Given Father’s past use of
methamphetamine and Mother’s accusation that he introduced
her to the drug, DCFS recommended that Father be ordered to
drug test and refrain from all drug and alcohol use.
Father was reported for child abuse in 2008 when Jason Jr.
was five. Jason Jr. told DCFS that Father choked him until tears
came to his eyes. Father was reportedly under the influence at
the time. The referral was “inconclusive” because Father refused
to test for drugs, Jason Jr. denied being abused, and no marks or
bruises were seen.
After the detention hearing, neither parent enrolled in
programs and they failed to test for drugs. Father missed every
test except one, which was positive for cannabinoids. Mother
tested positive for methamphetamine and cannabinoids and
refused to attend a court-ordered psychological evaluation.
4
At the jurisdiction hearing in March 2018, Mother pleaded
no contest to two counts: (1) J.M. sustained bruises and welts
while under her supervision, she failed to explain his injuries,
and this places the children at substantial risk of physical harm;
(2) she recently used methamphetamine, which negatively
impacts her ability to consistently care for and supervise her
young children, placing them at substantial risk of harm. At
disposition, the children were removed from her care.2
Father testified that when he said he “jumped [Mother’s]
case” he meant he questioned her; he denied hitting her, though
they scuffled over a phone. He blamed his failure to drug test on
a “junk” cell phone. He argued that Mother’s accusations against
him are self-serving and asked the court to dismiss the petition.
The court believed Father’s testimony denying domestic
violence and Mother’s statement that Father introduced her to
drugs. Citing Father’s failure to appear for drug testing, it
sustained a count that Father has a history of substance abuse
and convictions for possessing drug paraphernalia; he previously
used methamphetamine and currently uses marijuana, which
prevents him from providing regular care for children of a tender
age and places them at risk of serious harm. The domestic
violence count was dismissed.
Father was ordered to participate in weekly drug and
alcohol testing and a substance abuse program if he tests positive
or misses two tests; domestic violence and parenting programs;
individual counseling to address case issues; and not to monitor
Mother’s visits. The court specified that Father’s usage of
marijuana cannot increase and he cannot test positive for illegal
__________________________________________________________
2 In 2017, Mother was convicted of inflicting injury upon a
child.
5
drugs. The children were declared dependents of the court and
placed in Father’s custody, under DCFS supervision.
In July 2018, DCFS filed a supplemental petition alleging
that Father violated court orders by allowing Mother to frequent
his home and have unmonitored access to the children; further,
Father failed to undergo drug testing. His conduct endangers the
children’s health and safety.
In a detention report, DCFS stated that Father was warned
in March 2018 that the children would be removed if he allowed
Mother to transport or visit them without a DCFS monitor. He
refused offers of childcare assistance. Told in May 2018 that he
missed nine drug tests, he claimed to be unaware he should call
the drug testing site. In June 2018, J.M. told CSW that Mother
and Father were spanking him; Mother had done so “last night”
at the family home. J.M. “observed fighting” between his
parents. Mother pounded on the door and Father threatened to
“knock her out.” CSW went to a daycare facility where Father
purportedly enrolled L.M. and was told they had no such child
there. Father did not make the children available to DCFS, then
instructed them not to tell CSW about Mother’s visits. He did not
enroll the children in counseling or participate in court-ordered
programs. A YMCA staff member said that Mother came to pick
up J.M. at summer camp.
The court authorized emergency removal of the children,
who were placed with the paternal grandparents (PGPs). Father
said his failure to drug test and Mother’s visits to his home were
based on a “misunderstanding.” On July 3, 2018, the court found
a prima facie case to detain the children because leaving them
with Father poses a substantial danger: He gave Mother access
to the children, there was domestic violence, and he failed to test
6
for drugs or presented “diluted” samples. He was given
monitored visits.
In interviews, J.M. reiterated that Mother hit him with a
cord but later apologized for hurting him. Father brought Mother
to pick up J.M. at summer camp. Father hid J.M. from CSW
when she came to the family home. Though Mother spanks J.M.
for not listening, she no longer hits him with cords or shoes, just
her hand. Father also spanks him.
Father conceded that Mother visited his home six or seven
times. He said, “I broke the rules a little bit,” rationalizing that
he was trying to help Mother. Both parents had failed to appear
for all their drug tests. DCFS felt Father endangered the
children by allowing Mother to visit and physically punish J.M.
After the children were detained, Father tested positive for
cannabinoids four times and failed to show up for testing five
times in a two-month span. DCFS reported that Mother is
incarcerated.
In October 2018, Father waived his right to trial and
pleaded no contest to allegations in the supplemental petition
that he failed to comply with court orders requiring drug testing
and by allowing Mother to frequent his home and access the
children without an approved monitor; his conduct places the
children at risk of serious physical harm.
In April 2019, DCFS reported that Mother did not
participate in court-ordered programs or monitored visits from
August 2017 until April 2018. Thereafter, she was arrested for
possessing unlawful paraphernalia, shoplifting and identity theft.
The last charge resulted in a felony conviction, for which she was
incarcerated. The children were doing well in the home of PGPs.
7
Father completed a parenting program and individual
counseling in December 2018. He flatly refused to enroll in a
domestic violence program. He tested positive for cannabinoids
13 times from September through December 2018; he missed two
tests, three were diluted, and the drug levels were increasing. He
visits the children frequently at PGPs’ home. They were excited
to see him. Visits were not liberalized because Father “continues
to use mind altering substances and has not enrolled in Domestic
Violence and insists he will not do so.” From January to April
2019, Father tested positive for cannabinoids 11 times and
missed one test; the substance levels were high.
A contested disposition hearing was held in April 2019.
Father testified that he visits the children daily at PGPs’ home.
He initially was uninterested in addressing domestic violence in
counseling because he never hit anyone; he now realizes that
allowing Mother to visit the children was dangerous, as was
arguing in front of the children. Their altercations were verbal
except for one incident in which Father knocked a phone from her
hand, she jumped on him, and they fell. Mother is incarcerated
so he does not see her as posing a threat.
Father is a dental assistant. He acknowledged that testing
shows his marijuana intake has greatly increased. He insists
that his usage has not affected his work or his life, claiming to
smoke a single marijuana cigarette before bed and drink two
beers at dinner or a glass of wine. He agreed to stop smoking
marijuana entirely if the court orders it. He did not enter a
rehabilitation program despite the increase in his drug levels.
Father asked the court to return the children to his care or allow
unmonitored visits.
8
The court found that Father is remorseful and has learned
not to violate its orders. The court did not believe there is a risk
of harm to the children, despite a concern about Father’s
increasing marijuana levels. Over the objection of DCFS, the
court placed the children with Father and ordered him “to test
weekly and show levels of marijuana decreasing to zero.” He was
ordered to take a full outpatient drug and alcohol program and a
domestic violence program. The court authorized DCFS to
remove the children from Father if his marijuana levels increase.
In August 2019, DCFS filed a second supplemental petition
alleging that Father failed to comply with the court orders
requiring a domestic violence program, a drug and alcohol
program and decreased drug levels. Father tested positive 10
times from April to August and failed to show up for testing six
times. DCFS removed the children from Father’s care, although
they have been living with PGPs since the April 2019 hearing.
Father said he was homeless or living with a girlfriend; he
refused to give DCFS an address to assess his living conditions.
On July 29, he insisted he was “clean;” the following day, he
tested positive for marijuana.
The court found a prima facie case to detain the children.
It noted that this was no mere “slip-up” because “Father has
either tested positive for marijuana or [was a] no show for every
single test since the minors were released to him in April, and
Father has not tested clean on one single occasion.” Father
violated the court’s orders. He was given monitored visits and
ordered to comply with the case plan.
In October 2019, DCFS reported that Father tested positive
for marijuana twice in September, after the latest detention
hearing, then failed to appear for a test. He claimed to have
9
enrolled in an outpatient drug treatment program but there were
no progress reports. DCFS deemed the children (ages three, six
and seven) at “high” future risk for neglect. PGPs are willing to
adopt, should the parents fail to reunify.
Father knew the children were detained because he tested
positive for alcohol and marijuana. He insisted, “The judge just
told me to make sure my levels are coming down” but was unsure
what his blood levels are. He blamed a positive alcohol test on a
party where he had “a drink or two,” forgetting that he had to
drug test after the party. Father said, “I’ve taken a hit from the
joint maybe once or twice since this whole thing,” adding, “I can
stop whenever I want to.” He does not have a diagnosis
warranting medical use of marijuana. He was reminded that he
had to refrain from marijuana if he wants to reunify.
Father’s new home was suitable for children. Jason Jr.
resides there. Father visits the children regularly and they are
happy to see him. He does not seem to be under the influence
during visits, according to PGPs. DCFS was concerned that
Father continues to use substances even after enrolling in a
substance abuse program.
The court found the second supplemental petition true on
November 5, 2019. After the hearing, Father was called to test
four times in November; he did not appear for any of the tests.
He was called four times in December and did not appear for a
single test.
A contested disposition hearing was held on January 16,
2020. Father sought custody of the children or unmonitored and
overnight visits. He claimed he had been unable to drug test and
DCFS did not show that he was under the influence around the
10
children. He completed a domestic violence program and is in an
outpatient substance abuse program.
The court ruled that placing the children with Father
would be detrimental to their welfare. His continued use of
substances and failure to submit to testing “all persuade me that
there are serious unsolved issues of substance abuse here, and
based on that, I find that the Department has met its burden in
this case.” Father must continue with a drug and alcohol
program, weekly drug testing and a 12-step program.
DISCUSSION
1. Timeliness of the Appeal
The clerk served the court’s order on January 16, 2020.
The notice of appeal in our record was filed on March 17, 2020,
one day after the 60-day window for filing an appeal expired.
(Cal. Rules of Court, rule 8.406(a).) We issued an Order to Show
Cause why the appeal should not be dismissed as untimely.
In response, Father submitted evidence that his notice of
appeal was stamped “Received” on March 12, 2020. Trial counsel
declares that the Superior Court clerk demanded “one appeal per
child.” Trial counsel complied but the notice was not stamped
“Filed” until March 17, one day after the appeal period lapsed.
Respondent has not objected to Father’s evidence.
We deem Father’s appeal to be timely filed. A notice of
appeal delivered “within the requisite period and rejected by the
clerk for reasons having nothing to do with timeliness” satisfies
court rules. (Pangilinan v. Palisoc (2014) 227 Cal.App.4th 765,
769–770 [rejected appeal bore the wrong case number].) “The act
of delivering the document to the deputy clerk at the court during
office hours constituted the act of filing.” (Rapp v. Golden Eagle
Ins. Co. (1994) 24 Cal.App.4th 1167, 1172; Cal. Rules of Court,
11
rule 8.25(b)(1) [“A document is deemed filed on the date the clerk
receives it.”].)
2. The Removal Order
Father has the burden of showing that no substantial
evidence supports the court’s order. (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.)
A supplemental petition is used to change a dependent
child’s placement from parental custody to a more restrictive
level of care if a previous disposition was ineffective. (§ 387,
subd. (b); In re T.W. (2013) 214 Cal.App.4th 1154, 1161 (T.W.);
Cal. Rules of Court, rule 5.560(c).) The petition “need not allege
any new jurisdictional facts, or urge different or additional
grounds for dependency because a basis for juvenile court
jurisdiction already exists.” (T.W., at p. 1161.)
Father does not challenge the order sustaining the second
supplemental petition. There is thus no dispute that he failed to
comply with court orders requiring completion of a domestic
violence program, an outpatient drug and alcohol program, and
drug testing showing drug usage decreasing to zero.
“If the court finds the allegations are true, it conducts a
dispositional hearing to determine whether removing custody is
appropriate. . . . The only fact necessary to modify a previous
placement is that the previous disposition has not been effective
in protecting the child.” (T.W., supra, 214 Cal.App.4th at p. 1161;
Cal. Rules of Court, rule 5.565(e).)
Removal requires proof of a substantial danger to the
physical health, safety, protection, or physical or emotional well-
being of the children, and that even with the provision of services
12
there is no reasonable means to protect them without removal
from the parents. (§ 361, subd. (c)(1); In re Brianna S. (2021) 60
Cal.App.5th 303, 312–313.) “The parent need not be dangerous
and the minor need not have been harmed before removal is
appropriate. The focus of the statute is on averting harm to the
child.” (T.W., supra, 214 Cal.App.4th at p. 1163.)
The court made the required findings. It stated, “I do find
that putting the minors in the care of Father would be contrary to
their welfare and I find that [DCFS] has demonstrated by clear
and convincing evidence that there is or would be a substantial
danger to the children’s physical health, safety, protection or
physical or emotional well-being of the children if the children
were returned home. There are no reasonable means by which
the children’s physical health can be protected without removing
[them] . . . from the Father’s physical custody.”
The court cited evidence of drug use that continued after
the case plan was implemented in 2017. Father’s failure to drug
test convinced the court that he has “serious unsolved issues of
substance abuse.” Substantial evidence supports the ruling.
The children became dependents of the court in 2017 and
remained in Father’s custody. Father violated court orders
specifying that Mother’s visits had to be monitored because she
physically abused J.M. with an electrical cord. During visits that
were unsupervised by a DCFS monitor, Mother struck J.M. and
engaged in altercations with Father. After encouraging the
children to lie about Mother’s impermissible visits, Father
admitted to breaking visitation rules.
Father frequently missed court-ordered drug testing,
offering excuses such as a faulty cell phone, or unawareness that
he needed to call the drug testing facility. He repeatedly tested
13
positive and failed to enroll in a drug program. After the court
sustained the second supplemental petition in November 2019,
Father was called to test eight times and did not appear for a
single test before the removal order was issued. It is clear Father
has no intention of obeying court orders.
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.) Two of the
three children were of a tender age at the time of the
dispositional hearing, and thus presumptively are at risk due to
Father’s substance abuse where, as here, Father is their sole
caregiver. (In re Christopher R. (2014) 225 Cal.App.4th 1210,
1219–1220 [father’s chronic marijuana use is prima facie
evidence of his inability to care for young children].) And, as
discussed next, all three children face also “identified, specific
hazard[s] in the[ir] environment (In re Drake M. (2012) 211
Cal.App.4th 754, 766–767).
The court felt it could not ensure the children’s safety
without assurances that Father is sober, given a history that
includes use of methamphetamine. The court could reasonably
conclude that Father is not committed to his young children’s
safety and his lapses in judgment—failing to drug test, diluting
his tests, using increasing amounts of marijuana, falsely telling
DCFS he was clean, hiding the children from DCFS, introducing
Mother to methamphetamine and letting her care for the children
despite her violent behavior, allowing Mother to visit the children
without a DCFS monitor and to hit J.M.—are the result of his
entrenched substance abuse. (See In re M.R. (2017)
14
8 Cal.App.5th 101, 109–110 [parental judgment lacking where
they discounted the significance of alcohol use leading to a DUI].)
Father’s substance abuse is a condition that led to the
children’s dependent status. His use of marijuana is far from
“occasional.” It is compelling that Father knew he had to stop
using marijuana to reunify with his children, yet he was unable
to stop. His addiction has supplanted his judgment.
The record supports a finding that reasonable efforts were
made to prevent or eliminate the need to remove the children
from Father’s custody. (§ 361, subd. (d).) Father is an offending
parent who had years to comply with the case plan. The court
sustained the original petition in 2017, followed by supplemental
petitions in 2018 and 2019; Father ignored all three sustained
petitions. He could have chosen his children over drugs by
achieving sobriety at any point in three years. He failed to do so,
necessitating the children’s removal.
15
DISPOSITION
The disposition order is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
16