In re Angel M. CA2/7 ( 2021 )

Filed 9/29/21 In re Angel M. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re ANGEL M. et al., Persons B308983
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 20CCJP04605)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ANA M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Marguerite D. Downing, Judge. Dismissed in part;
affirmed in part.
William Hook, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________
Ana M. appeals from the juvenile court’s disposition order
removing from her physical custody the two children she had
with Isidro M., 16-year-old Angel M. and 14-year-old Blanca M.,
after the court sustained a petition under Welfare and
Institutions Code section 300, subdivision (b)(1),1 alleging Ana
had a history of illicit drug use and was a current user of
methamphetamine. During the pendency of the appeal, the
juvenile court ordered Angel and Blanca returned to Ana’s
physical custody and granted Ana family maintenance services.
We now dismiss Ana’s appeal as to Angel and Blanca as moot.
Ana also appeals the juvenile court’s custody order entered
as to the four children Ana had with Israel P., 11-year-old
Victoria M., 10-year-old Ariam P., two-year-old Jade P., and
three-month-old Neveah P., granting Israel sole legal custody of
the four children. We reject Ana’s contention the juvenile court
abused its discretion in entering the custody order, and we affirm
as to this order. Ana does not appeal the orders the juvenile
1 Further statutory references are to the Welfare and
Institutions Code.
2
court made as to the two children Ana had with Edwin M., seven-
year-old Karishma M. and five-year-old Serenia M.2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prior Dependency Case
On June 4, 2013 the juvenile court declared the four older
children, Angel, Blanca, Victoria, and Ariam, dependents of the
court. The court sustained the allegations Ana failed to protect
Angel and Blanca from physical abuse by Rosa C., an unrelated
female who lived in the home. The court also sustained the
allegation Ana used methamphetamine, which rendered her
incapable of providing regular care for the children. On March
20, 2014 the juvenile court terminated jurisdiction over Angel
and Blanca.3 On October 30, 2015 the court terminated
jurisdiction over Victoria and Ariam and granted joint legal and
physical custody to Ana and Israel.
On January 28, 2015 the Los Angeles County Department
of Children and Family Services (Department) received a referral
that in June 2014 Ana had tested positive for methamphetamine
while pregnant with Serenia. Ana said she did not know how she
tested positive for methamphetamine because she last used the
2 The three fathers are not parties to this appeal. Isidro has
not had contact with Angel and Blanca since 2013. Edwin has
not had contact with his children since 2015.
3 Although the record is not clear, we assume Ana was given
sole legal and physical custody because Isidro did not have
contact with Angel and Blanca after 2013.
3
drug in 2012. Ana’s toxicology test was negative when she gave
birth to Serenia in January 2015, and Serenia was not tested.
The allegation was deemed unfounded because there were no
continuing concerns at the time of the referral; Ana and Serenia
appeared healthy.
B. The Current Referral, Investigation, and Petition
On August 10, 2020 the Department received a referral
alleging Ana, who was pregnant with Neveah, tested positive for
methamphetamine on August 4 when she went to the emergency
room complaining of abdominal pain. Ana denied using drugs
and could not explain why she tested positive. Ana and Neveah
tested negative for drugs at the time of Neveah’s birth.
On August 17 a social worker made an unannounced visit
to Israel’s home. Paternal grandmother Benita A. answered the
door and gave the social worker permission to enter the home.
Ariam and Jade were present in the home. Benita stated Israel
and Ana had gone to Victoria’s school to pick up a laptop for
Victoria. Israel, Victoria, and Ariam lived with Benita. Benita
helped care for the children when Israel ran errands. Paternal
great-aunt Marilou D., who was present in the home, reported
she helped care for Ariam and Victoria when Benita and Israel
were at work. Benita indicated Ana and Israel were still in a
romantic relationship, but they did not live together. Benita
added that Ana acted appropriately and appeared well during
visits, and Benita had no concerns about Ana using drugs.
The same day the social worker made an unannounced visit
to Ana’s home. The social worker heard a female voice telling a
barking dog to be quiet, but no one responded to the social
worker’s knocks on the door. After making arrangements with
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Ana by phone, the social worker returned on August 19. Angel,
Blanca, Karishma, and Serenia were present. Ana reported
Victoria, Ariam, and Jade were at Israel’s home. Ana said
Victoria and Ariam went back and forth between her home and
Israel’s home.
The social worker observed Ana’s home was roach infested,
messy, and cluttered with “feces stains on the floor [and] opened
[R]aid bottles,” and it smelled of animal urine. Ana stated she
owned two dogs, one of which just gave birth to five or six
puppies, a bird, and five cats. Ana explained her house was
messy because she was rearranging furniture and in the process
of getting rid of things. Ana worked night shifts at a restaurant,
but she was currently on family leave for six weeks. Ana
indicated her sister would help care for the children while Ana
was at work.
The social worker reported Ana “adamantly denied using
[methamphetamine] and could not provide an explanation as to
how she tested positive.” Ana explained as to her prior
dependency case based on her methamphetamine use, “‘[B]ack
then I used a couple of times and I got caught.’” She denied using
methamphetamine since then. Karishma and Serenia, then six
and five, respectively, stated they did not attend school; Ana
confirmed they were not enrolled. The social worker reported
Serenia “emitted a foul odor” and appeared “unkempt with dirt
stains on her legs and feet,” disheveled hair, and dirty clothes.
Maternal aunt Sonia V. contacted the social worker to
express her interest in caring for Karishma and Serenia. Sonia
stated she helped care for the children about five times a week
when Ana was at work. Sonia reported all the children had lice,
which she and maternal grandmother had been trying to remove.
5
Sonia was aware of Ana’s past drug use; however, she did not
suspect Ana had used drugs recently. But Sonia admitted she
did not interact much with Ana because Ana would just drop off
and pick up the children. Sonia had not visited Ana’s home in
years, but she recalled Ana was a hoarder.
On September 2, 2020 the Department filed a petition on
behalf of the eight children alleging Ana had a history of illicit
drug use, was a current user of amphetamine and
methamphetamine, and tested positive for both drugs on
August 4, 2020.4
C. The Jurisdiction and Disposition Report
The October 8, 2020 jurisdiction and disposition report
stated Angel was placed in a short-term residential therapeutic
program; Blanca was placed with a foster family; Karishma and
Serenia were placed together with another foster family; and
Victoria, Ariam, Jade, and Nevaeh were released to Israel. The
children denied seeing Ana use methamphetamine, smoke,
behave erratically, or have mood swings. Blanca stated she
believed Ana tested positive for methamphetamine on August 4
because “‘they put someone else’s blood in [Ana], she said they
put needles in her.’” Blanca blamed Rosa for the prior
dependency case, explaining Rosa made Blanca “‘lie to social
workers and say my mom was a drug addict and using drugs.’”
Blanca added, “‘I knew Rosa was lying. Rosa also said my mom
hit me, but I knew it was really [Rosa] that hit me.’” Angel
4 The petition also alleged Ana struck Serenia’s body with a
hanger and her hands, but the juvenile court later dismissed this
allegation.
6
refused to provide information when asked what Ana smoked,
how often, and when Ana last smoked. As to the prior
dependency case, Angel stated Ana smoked “‘a couple of years
ago, maybe.’” Both Angel and Blanca wanted to return home to
Ana.
Ana was willing to participate in services, but she denied
any current use of methamphetamine or other drugs. Ana had
only used crystal methamphetamine “‘for 2 months on different
occasions’” in 2012. She completed a 52-week drug program and
a 12-step program for the prior dependency case, but she claimed
she was able to stop using methamphetamine on her own. Ana
admitted she tested positive for methamphetamine at the
hospital two times on August 4, 2020. But she claimed she had
not used methamphetamine since 2012, and it was not possible
for her to have the drug in her system. Ana had no explanation
for her positive drug tests.
Israel stated he was not aware Ana was using drugs. He
reported that during the prior dependency case Ana failed to
show up for visits, and on one occasion Ana visited Victoria and
Ariam while under the influence of drugs. But Israel was
shocked to learn that Ana had tested positive for
methamphetamine. When Israel later spoke with Ana, she
denied using drugs. Israel had not observed Ana recently acting
erratically or having mood swings. But he noted that on the rare
occasions he visited Ana’s home, her home would be dirty with
roaches and old food. Ana was always tired when he saw her,
and in retrospect, Israel thought drugs might have affected her
because she did not understand her home was in a problematic
state. Israel had a concern about Ana’s ability to care for their
children because when Victoria and Ariam spent three weeks
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with Ana the prior summer, they returned with lice. Had Israel
known of Ana’s recent drug use, he would not have allowed
Victoria and Ariam to have contact with Ana, and he would have
taken steps to obtain custody of Jade.
Edwin reported that when he first dated Ana in 2013,
“‘she’d been using meth for a long ass time, but she stopped when
she went to [c]ourt.’” Edwin stated that once the prior
dependency case closed in 2015, Ana “started using again, [and]
she wouldn’t listen to me or other people telling her to stop.’”
Edwin added, “‘[W]hen she got her kids back, she wasn’t smoking
much, she’d do it when they were with other people.’” Edwin said
Ana lived in a one-bedroom apartment “‘and she didn’t want the
kids to see her smoke, so she would go to the restroom.’” Edwin
and Ana separated in October 2015, and to his knowledge, Ana
was still smoking methamphetamine at the time. He could not
recall how often she smoked or how much methamphetamine she
used.
Ana tested negative for drugs on August 20, September 9,
and September 21, 2020. But Ana missed a random drug test on
October 2. Ana explained she forgot to call the random testing
phone number, and when she called late on Saturday, she
learned she had missed her test date. The social worker did not
find Ana’s statement credible, noting “the number to call in for
random testing is only valid from Sundays to Thursdays.”
According to the November 11, 2020 last minute information for
the court, Ana missed another random drug test on October 20,
2020. ~3 CT 612)~ The report noted Ana “has not drug tested at
all for the month of October.”
The Department recommended the juvenile court assume
jurisdiction over all eight children and remove them from Ana’s
8
physical custody based on her unresolved methamphetamine use.
The Department also recommended the court terminate
jurisdiction over Victoria, Ariam, Jade, and Neveah, with a
custody order granting Israel sole physical and legal custody with
monitored visits for Ana.
D. The Jurisdiction and Disposition Hearing
At the November 12, 2020 jurisdiction and disposition
hearing, minors’ counsel (representing all children except
Serenia) and Serenia’s counsel requested the juvenile court
assume jurisdiction over all eight children based on Ana’s
methamphetamine use. Minors’ counsel also requested the court
terminate jurisdiction over Victoria, Ariam, Jade, and Neveah
with a juvenile custody order granting Israel sole physical and
legal custody of his children. Ana’s counsel could not explain why
Ana tested positive and conceded Ana missed a random drug test,
but it was “an accident.” Ana’s counsel also argued the
allegations of Ana’s drug use should be dismissed because there
was no current risk of harm to the children.
For disposition, Ana’s counsel asked the juvenile court to
return all eight children to Ana because they were “well bonded
with Ana” and Ana “[was] testing clean.” Ana was willing to
participate in services and was attending a parenting course and
receiving mental health services. Ana objected to the court
entering a custody order giving Israel sole legal and physical
custody of Victoria, Ariam, Jade, and Neveah. In addition, Ana
objected “to any drug program, as Ana is testing clean.”
The juvenile court sustained the section 300,
subdivision (b)(1), allegations that Ana had “a history of illicit
drug use and was a current user of amphetamine[] and
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methamphetamine[], which render[ed] [Ana] incapable of
providing regular care and supervision of the children.” The
court declared the children dependents of the court and removed
them from Ana’s custody. The court stated, “The factual basis is
[Ana] has a substance abuse issue that she has lacked insight for.
[¶] Her home reflects the lack of engagement in parenting, and
the fact that her children were not in school, also reflects that.
[¶] So the court, at this time, finds that it would be premature to
return these children to her care.” The court terminated
jurisdiction over Victoria, Ariam, Jade and Neveah and granted
Israel sole legal and physical custody of those children with
monitored visitation for Ana. The court stayed the order
terminating jurisdiction, and on November 20, 2020 the court
entered a juvenile custody order granting Israel sole legal and
physical custody of Victoria, Ariam, Jade, and Neveah, with
“monitored visitation [for Ana] as agreed upon by parents” with
an appropriate monitor.
The juvenile court ordered Ana to participate in a drug and
alcohol program with aftercare, weekly random or on demand
drug testing, a 12-step program with a court card and sponsor,
developmentally appropriate parenting classes, individual
counseling to address case issues, and family planning. The
court granted Ana monitored visitation with Angel, Blanca,
Karishma, and Serenia for three-hour visits, three times per
week.
Ana timely appealed. During the pendency of her appeal,
at the six-month review hearing held on July 15, 2021, the
juvenile court returned Angel, Blanca, Karishma, and Serenia to
10
Ana’s physical custody.5 (§ 366.21, subd. (e).) The court found
Ana had made substantial progress “toward alleviating or
mitigating the causes necessitating placement” and release of the
children to Ana “would not create a substantial risk of detriment
to [their] safety, protection, or physical or emotional well-being.”
The court ordered the children placed in Ana’s home and ordered
the Department to provide family maintenance services to Ana
and the children.
We invited the parties to submit letter briefs addressing
whether Ana’s appeal had been rendered moot by the July 15,
2021 orders. The Department argued in its supplemental brief
that Ana’s appeal as to Angel and Blanca should be dismissed as
moot because Ana would not suffer any prejudice from dismissal.
Ana filed a supplemental brief stating she “submits the matter
for decision based on the placement order and respondent’s letter
brief.”
5 We take judicial notice of the July 15, 2021 minute orders.
(Evid. Code, §§ 452, subd. (d), 459, subd. (a).) Consideration of
postjudgment evidence is appropriate when the later orders are
relevant to a motion to dismiss an appeal or to determine
whether the evidence renders the appeal moot. (In re Josiah Z.
(2005) 36 Cal.4th 664, 676 [“appellate courts routinely consider
limited postjudgment evidence” for motions to dismiss]; In re N.S.
(2016) 245 Cal.App.4th 53, 57 [appellate court may consider
postappeal rulings that affect its ability to grant effective relief].)
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DISCUSSION
A. Ana’s Appeal of the Order Removing Angel and Blanca from
Her Physical Custody Is Moot
A dependency appeal “‘“becomes moot when, through no
fault of the respondent, the occurrence of an event renders it
impossible for the appellate court to grant the appellant effective
relief.”’” (In re J.P. (2017) 14 Cal.App.5th 616, 623; accord, In re
N.S. (2016) 245 Cal.App.4th 53, 61 [mother’s appeal was moot
where juvenile court awarded her custody of minor and dismissed
dependency proceedings]; In re Albert G. (2003) 113 Cal.App.4th
132, 134 [maternal aunt’s appeal of child’s removal from her care
and denial of her section 388 petition were rendered moot by
child’s adoption].)
Ana challenges the juvenile court’s removal of Angel and
Blanca from her physical custody on the basis 16-year-old Angel
and 14-year-old Blanca were at a lower risk of harm than their
younger siblings because they were capable of taking care of
themselves and reporting any safety issues to the social worker
or other family members. But at the July 15, 2021 six-month
review hearing, the juvenile court returned the children to her
physical custody and granted her family maintenance services.
Ana’s appeal is therefore moot because even if we reversed the
removal order, we would be unable to grant Ana any effective
relief. Ana does not present any arguments to the contrary.
B. The Juvenile Court Did Not Abuse Its Discretion in
Granting Israel Sole Legal Custody
Upon termination of jurisdiction, the juvenile court may
issue a custody and visitation order, commonly called an “exit
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order,” “determining the custody of, or visitation with, the child.”
(§ 362.4, subd. (a); see In re C.W. (2019) 33 Cal.App.5th 835, 863;
In re Armando L. (2016) 1 Cal.App.5th 606, 616.) An exit order,
like other custody orders, focuses on the child’s best interests. (In
re C.M. (2019) 38 Cal.App.5th 101, 109 [“When a juvenile court
makes custody and visitation orders, it does so pursuant to its
authority under the Welfare and Institutions Code, guided by the
totality of the circumstances in issuing orders that are in the
child’s best interests.”]; see In re Chantal S. (1996) 13 Cal.4th
196, 206.) If there is a pending family law case, the exit order
will be filed in that proceeding (§ 362.4, subd. (b)); if not, the
order may be used to open a new family law case (id., subd. (c)).
(See C.W., at p. 863; Armando L., at p. 616.) The order remains
effective “until modified or terminated by a subsequent order of
the superior court.” (§ 362.4, subd. (b).)
We review the juvenile court’s exit order for an abuse of
discretion. (In re C.W., supra, 33 Cal.App.5th at p. 863; see In re
Stephanie M. (1994) 7 Cal.4th 295, 318 [“when a court has made
a custody determination in a dependency proceeding, ‘“a
reviewing court will not disturb that decision unless the trial
court has exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination
[citations].”’”].)
Ana contends the juvenile court abused its discretion in
awarding Israel sole legal custody of Victoria, Ariam, Jade, and
Neveah because it was not in the children’s best interests. She
argues there was no showing she had a limited ability to
participate in decision making relating to the children’s health,
education, and welfare.
13
However, as the juvenile court found, Ana had a continuing
substance abuse issue and lacked insight into her drug problem.
Ana was adamant she had not used methamphetamine since
2012, even though she tested positive for methamphetamine in
June 2014 while pregnant with Serenia and again in August
2020 while pregnant with Neveah. On both occasions, Ana could
not explain her positive drug test results. Further, Edwin M.,
who was in a relationship with Ana from 2013 to October 2015,
reported once the prior dependency case closed, “[Ana] started
using again, she wouldn’t listen to me or other people telling her
to stop.” Although Ana completed a 52-week drug treatment
program in the prior dependency case, she maintained she did
not need the program to stop using drugs and only completed it
because of the court order. Moreover, Ana did not drug test in
October 2020, missing two random drug tests the month before
the November 12 disposition hearing.
Israel was concerned that Ana’s drug use may have affected
Ana’s parenting in that she did not understand the condition of
her home was a problem, and the prior summer Ana had
returned Victoria and Ariam to Israel with lice after they spent
three weeks with Ana. The juvenile court found the condition of
Ana’s home reflected “lack of engagement in parenting.” When
the social worker visited Ana’s home on August 19, 2020, the
house had feces stains on the floor, smelled of animal urine, had
open Raid bottles, was roach infested, and cluttered. Serenia
“emitted a foul odor,” had dirt stains on her legs and feet,
disheveled hair, and dirty clothes.
Further, Ana’s contention she met her children’s medical
and educational needs is belied by the record. We acknowledge
the COVID-19 pandemic made it challenging for Ana to keep the
14
children current with their medical examinations and Jade up to
date with immunizations. But Ana showed poor parenting
judgment with her other children in her care before all eight were
removed from her custody. Ana provides no reason why she did
not enroll six-year-old Karishma and five-year-old Serenia in
school. After Karishma was placed in foster care, she started
attending first grade, but according to her foster parents, she was
“struggling in school and her teacher is worried about her
development as she appears to be far behind her peers and
struggling.” Further, “Karishma cannot write her name, can only
count to 4 and ‘can’t keep up’ in school.” After her placement,
Serenia was enrolled by her foster parent in kindergarten; the
foster parent reported “Serenia is eager to learn but is very
behind and does not know her letters or numbers.” In addition,
Angel had an individualized education plan (IEP) for “[e]motional
[d]isturbance,” and Ana failed to participate in his IEP meeting
despite being notified three times. Ana also did not attend a
June 4, 2020 evaluation for Blanca’s IEP plan for Blanca’s
learning disability. Ana’s failure to provide proper parenting as
to four of the children in her care was a valid basis on which to
conclude she was not ready to parent her other four children—
Victoria, Ariam, Jade, and Neveah. Victoria and Ariam were
younger than Angel and Blanca, and Jade and Neveah were also
younger than Karishma and Serenia. And Victoria, Ariam, Jade,
and Neveah had a father (Israel) who was committed to caring for
all four children and had no history of alcohol or drug problems or
other issues that would interfere with his decision making as to
the children.
15
Under the totality of the circumstances, the juvenile court
did not abuse its discretion in granting Israel sole legal custody of
Victoria, Ariam, Jade, and Neveah.6
DISPOSITION
Ana’s appeal from the disposition order removing Angel
and Blanca from Ana’s physical custody is dismissed. The
juvenile custody order as to Victoria, Ariam, Jade, and Neveah is
affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
6 We recognize the juvenile court on July 15, 2021 returned
Angel, Blanca, Karishma, and Serenia to Ana’s care. But this
has no bearing on whether the court should have granted joint
legal custody of Victoria, Ariam, Jade, and Neveah to Ana eight
months earlier at the disposition hearing. At that hearing, the
court removed all eight children from Ana’s care.
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