In re Kimberly R. CA2/7 ( 2023 )

Filed 5/15/23 In re Kimberly R. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
In re KIMBERLY R. et al., B318546
Persons Coming Under the (Los Angeles County Super.
Juvenile Court Law. Ct. No. 21CCJP03658)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ANDREA E.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Robin Kesler, Juvenile Court Referee. Affirmed.
Johanna R. Shargel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Kelly G. Emling, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________
Andrea E. (Mother) appeals from the juvenile court’s
jurisdiction findings and disposition orders declaring her
children, 16-year-old Kimberly R., 14-year-old Kailey R., 11-year-
old Michelangelo H., seven-year-old Harmony M., six-year-old
Precious M., and 21-month-old Serenity V., dependents of the
court pursuant to Welfare and Institutions Code1 section 300,
subdivision (b)(1). Mother contends there is insufficient evidence
that her mental and emotional problems, abuse of marijuana,
and failure to provide adult supervision placed the children at
risk of serious physical harm. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Referral and Investigation
On July 13, 2021 the Los Angeles County Department of
Children and Family Services (Department) received a referral
alleging that for the prior two months Mother had left the
children unsupervised for days or weeks at a time. The caller
reported Mother would drop items off at the home, then leave.
The caller overheard the children arguing with each other about
food and being hungry. The caller also reported Mother was
1 Further statutory references are to the Welfare and
Institutions Code.
2
pregnant and might be using crystal methamphetamine and
marijuana.
On the same day, a Department social worker went to the
family’s home, but a woman inside the home told the social
worker Mother was sleeping, and the woman slammed the door
shut. The social worker contacted the police to request a welfare
check, and two police officers arrived at the home. One of the
officers knocked several times and announced, “Downey Police,”
but no one answered the door. The officers and social worker
spoke with a neighbor, who stated the children were left home
alone for “‘only days at a time’” (not weeks). The neighbor also
reported hearing fighting among the children when they were left
alone.
Later that day the social worker spoke with Jose M., the
father of Harmony and Precious. Jose stated he and Mother
dated for 10 years before they married in 2017. After one month
of marriage, Mother decided to separate from Father, and she left
with their children. Father recently filed for divorce and custody
of his children because Mother had not allowed him to see the
children since February. Jose denied knowledge of Mother’s
methamphetamine use, but he had seen a photograph of Mother
smoking marijuana. Jose reported that when he and Mother
lived together, Mother did not consume drugs because Mother
knew Jose did not “‘like people who do meth.’”
The next day the social worker spoke with Mother by
telephone. Mother said she did not answer the door the prior day
because she took medication for depression and fell into a deep
sleep. Mother denied hearing anyone at the door, and no one told
her that someone was at the door.
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In a second telephone interview the same day, Mother
indicated the fathers of her children were not involved in their
lives. Jose did not provide any child support for Harmony and
Precious, and he refused to visit the children because of a dispute
over child support. Kimberly and Kailey’s father, Vidal R., lived
in Bakersfield with his new family and did not have contact with
the children. Michelangelo’s father, Michael H., had been in
prison in Tijuana for the past nine years, and he had not been in
contact with Mother or Michelangelo. Serenity’s father, Louie V.,
was serving a prison sentence at the California City Correctional
Facility. Mother reported she was four months pregnant, but she
was no longer in a relationship with Luis S., the father of her
unborn child.
Mother disclosed she had been diagnosed with depression,
post-traumatic stress disorder (PTSD), bipolar disorder, and
anxiety. The children were not residing with her because she
was depressed. Mother did not currently have suicidal ideation,
but she admitted having suicidal thoughts as recently as two
weeks earlier. Mother denied using methamphetamine, but she
admitted to smoking “a ‘bowl’” of marijuana every four hours to
treat her anxiety. Mother reported that if she did not smoke
marijuana every four hours, she felt she would “‘lose [her] mind.’”
Mother’s July 19, 2021 drug test was negative.
Mother stated she and the children had not resided at their
home since July 4, 2021 because someone called her “a ‘snitch
and [said] they have paperwork on [her],’” and she was afraid for
her and her children’s safety. Mother stated Kimberly and
Harmony were staying at maternal aunt Monique E.’s home in
Visalia, which was a four-hour drive from Mother’s home.
Michelangelo and Precious were staying at maternal aunt Tina’s
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home in Compton. Mother reported that Serenity had always
lived with her paternal grandmother, Sylvia V., in Norwalk
because “‘it is hard with [six] kids.’” Mother planned to take
Serenity back when Mother moved to a larger home. Mother had
been staying at the home of maternal grandmother, Maria D., in
South Gate, and Mother’s friend Vivian had been going to
Mother’s home to care for her cats while she was gone. Mother
believed Vivian was at Mother’s home when the social worker
and police officer knocked on the door, but Vivian did not open
the door because she “‘was probably scared.’”
The social worker interviewed the children on July 15,
2021. Kimberly stated that since July 4 she, Precious, and
Harmony had been staying at Monique’s home, and Kailey and
Michelangelo had been staying with Tina. Serenity lived with
Sylvia because the family’s current home was too small.
Kimberly disclosed that at the time she was living in the family
home, she took care of her siblings with Kailey’s help when
Mother was not home. Kimberly said the children went to bed at
8:30 p.m., and Mother would not be home at that time. Mother
was generally home in the mornings, “‘but sometimes no.’”
The children provided inconsistent accounts of who was
home on July 13 when the social worker and police arrived.
Kailey reported she was home with Michelangelo and her friend
Madalyn when the social worker and police knocked on the door.
They did not open the door because they were scared. Kailey
then recanted her story and said the three of them and Madalyn’s
mother were asleep and did not hear the police knock on the door
or windows. Kailey added that Kimberly, Precious, and Harmony
were not home that day because they were visiting Monique.
Kailey said Mother was at the bank that morning and returned
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home later that night. According to Kailey, Mother would leave
their home in the morning but return at night.
Michelangelo said he and Precious had been staying with
Tina since July 4. Michelangelo reported that Kimberly and
Harmony were in Victorville with Monique, and Kailey and
Madalyn were present when the social worker and police came to
the home. Michelangelo denied Mother left him and his siblings
alone overnight.
Harmony stated she was home with Kimberly, Kailey,
Michelangelo, and Precious when the social worker and police
came to the home. Harmony reported that when Mother would
leave to go to the store, she and her siblings stayed home with
Kimberly.
Precious said Mother did not leave her or her siblings home
alone. Precious was not present when the social worker and
police came to her home, but Kimberly, Kailey, and Harmony
were there. Precious stated she was at Monique’s home.
B. The Dependency Petition and Detention Hearing
On August 6, 2021 the Department filed a dependency
petition alleging pursuant to section 300, subdivision (b)(1), that
Mother had mental and emotional problems, including
depression, PTSD, bipolar disorder, anxiety, and suicidal
ideation, and she failed to take her prescribed psychotropic
medication. Mother’s mental and emotional problems rendered
her unable to provide regular care of the children and placed
them at risk of serious physical harm. The petition also alleged
Mother had a history of substance abuse and abused marijuana.
Finally, the petition alleged, “On numerous prior
occasions . . . [Mother] left the children home alone without adult
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supervision for extended periods of time. The children are of
such an age as to require adult supervision. The mother’s
whereabouts were unknown. The mother’s failure to provide
adult supervision for the children endangered the children’s
physical health and safety and creates a detrimental home
environment, placing the children at risk of serious physical
harm, damage, and danger.”
At the August 11, 2021 detention hearing, the juvenile
court detained Kimberly and Kailey and ordered them released to
Vidal. The court detained Michelangelo and placed him with
Maria. The court also detained Harmony and Precious and
ordered them released to Jose. The court granted Mother
monitored visits with each child three times per week for two
hours each visit and ordered that the respective fathers could not
monitor the visits. The court granted the Department’s request
for a protective custody warrant for Serenity and an arrest
warrant for Sylvia, who could not be located.
C. The Jurisdiction and Disposition Report
As of October 6, 2021 Kimberly and Kailey remained with
Vidal in Bakersfield; Harmony and Precious resided with Jose in
Inglewood; Michelangelo was in foster care;2 and Serenity was at
large with Sylvia. According to Mother, Kimberly had a medical
condition that caused skeletal abnormalities, intellectual
disabilities, and respiratory problems. Kimberly denied Mother
used drugs or left her and her siblings home without adult
2 Michelangelo was removed from Maria’s care and placed in
a foster home because she had a prior dependency case involving
severe neglect of one of her children.
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supervision for extended periods of time. However, Kimberly
sometimes did not know where Mother was after Mother left the
home. Kimberly reported Mother would cry and sometimes stay
in her room all day.
Kailey confirmed Mother sometimes cried in her room. She
believed Mother smoked marijuana twice a day outside the home.
Although she never saw Mother use marijuana, Mother’s clothes
smelled of marijuana. Kailey said Mother would take Harmony
and Precious with her to run errands, but they would return later
the same day. However, there were times when Mother would
stay at Maria’s home overnight and come home early the next
morning before the children woke up.
Michelangelo stated Mother was gone for only two to three
hours to shop for food and other items. Harmony disclosed
Mother would leave for days without coming home and would not
tell the children where she was going. Precious said Kimberly
and Kailey took care of her and her siblings when Mother was
gone, explaining, “‘My mom would leave us but only when we
slept at night and she would be back in the morning.’” According
to Precious, sometimes Mother would take the children to Maria’s
home for an overnight stay or bring them to the homes of
Monique and Tina. Jose reported Precious told him that on one
occasion the children did not eat anything for two days.
Mother denied she left the children home without adult
supervision for extended periods of time. She stated she took
Precious and Harmony with her when she ran errands and left
the three oldest children (Kimberly, Kailey, and Michelangelo) at
home because she could not take all of them, especially during
the COVID-19 pandemic. Sometimes Monique and Tina took
care of the children while Mother ran errands. Mother admitted
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she had been using marijuana since she was 18 years old, but she
denied her marijuana use prevented her from providing care for
the children. Mother kept marijuana in her van and smoked
outside the home. She stopped taking her prescribed
psychotropic medication in December 2020 because she was five
months pregnant. Mother had been seeing a therapist for the
past five years, and she last saw her therapist in August 2021.
Mother tested positive for marijuana on October 6, 2021.
She also failed to show up for drug testing on seven occasions in
October and November 2021.
D. The Jurisdiction and Disposition Hearing
At the December 29, 2021 jurisdiction and disposition
hearing, the juvenile court sustained the allegations in the
petition under section 300, subdivision (b)(1). The court
explained, “[Mother] does have mental health issues which
interfere[] with her abilit[y] to care for her children such that she
uses marijuana frequently during the day. Some of the
kids . . . are able to say the truth and the others are not. The
older kids appear to be protecting their mother in that regard.
We do have a report—I think it was Kailey—that her mom would
go outside, smoke and come back in smelling of marijuana and
she did that numerous times in the day. [Mother] does have at
least one child that is only one and if she’s the sole caregiver for
the child, she was always under the influence trying to care for
this child.” The court added, “[Mother] did leave the kids—some
of the kids said that [Mother] wasn’t gone long and then finally I
believe it was Harmony that was able to tell us that [Mother] was
gone up to days at a time.”
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The court declared the children dependents of the court and
removed them from Mother’s physical custody. The court also
removed Michelangelo from his father’s custody and Serenity
from her father’s custody.3 The court terminated jurisdiction
over Kimberly, Kailey, Harmony, and Precious and entered
juvenile custody orders granting the respective fathers sole
physical custody and joint legal custody with Mother, with each
father having tie-breaking authority over parenting decisions.
The court also granted Mother one weekly monitored visit with
each of the four children.
The juvenile court ordered Mother to participate in a
minimum six-month drug/alcohol program with aftercare,
random or on-demand drug testing every other week, a 12-step
program with court card and sponsor, parenting classes, a
psychiatric evaluation, and individual counseling to address case
issues, including substance abuse and mental health. The court
granted Mother monitored visits with Michelangelo and Serenity
with the Department having discretion to liberalize visitation.
The court ordered the Department to provide housing and
transportation assistance for Mother and to confer with Mother
on selection of a drug testing site closer to her home.
Mother timely appealed. In her notice of appeal, Mother
indicated she was appealing from the jurisdiction findings and
removal orders as well as “[o]ther orders” entered at the
3 Law enforcement found Serenity on November 10, 2021,
and she was placed in foster care.
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December 29, 2021 hearing.4 We liberally construe the appeal of
“other orders” to include an appeal from the orders terminating
jurisdiction over Kimberly, Kailey, Harmony, and Precious and
awarding sole physical custody to the respective fathers. (K.J. v.
Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 882
[“Rule 8.100(a)(2)’s liberal construction requirement reflects the
long-standing ‘“law of this state that notices of appeal are to be
liberally construed so as to protect the right of appeal if it is
reasonably clear what [the] appellant was trying to appeal from,
and where the respondent could not possibly have been misled or
prejudiced.”’”]; In re Joshua S. (2007) 41 Cal.4th 261, 272,
[children’s notice of appeal stating appeal was from the juvenile
court orders terminating jurisdiction “‘without first resolving
whether the children will continue to receive funding’” was
sufficient “to give the Court of Appeal jurisdiction to review the
juvenile court’s eligibility determination” with respect to state
financial assistance (italics omitted)]; see Cal. Rules of Court,
rule 8.100(a)(2) [“The notice of appeal must be liberally
4 Mother does not argue in her appellate briefs that the
juvenile court erred in removing the children from her physical
custody. In her opening brief, Mother only argues we should
reverse the disposition orders if we reverse the jurisdiction
findings. Mother therefore has abandoned any specific challenge
to the removal orders. (See Tiernan v. Trustees of Cal. State
University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [issue not
raised on appeal “deemed waived”]; Doe v. McLaughlin (2022)
83 Cal.App.5th 640, 653 [“An appellant abandons an issue by
failing to raise it in the opening brief.”]; Swain v. LaserAway
Medical Group, Inc. (2020) 57 Cal.App.5th 59, 72 [“‘“Issues not
raised in an appellant’s brief are [forfeited] or abandoned.”’”].)
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construed. The notice is sufficient if it identifies the particular
judgment or order being appealed.”].)5
DISCUSSION
A. Governing Law and Standard of Review
Section 300, subdivision (b)(1), authorizes the juvenile
court to assume jurisdiction when “[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
the child’s parent or guardian to adequately supervise or protect
the child . . . or by the willful or negligent failure of the parent to
provide the child with adequate food, clothing, shelter, or medical
treatment, or by the inability of the parent or guardian to provide
regular care for the child due to the parent’s or guardian’s mental
illness, developmental disability, or substance abuse.”
5 Because we construe Mother’s notice of appeal to include an
appeal from the orders terminating jurisdiction and awarding
sole physical custody to the respective fathers, Mother’s appeal
from the jurisdiction findings and disposition orders as to
Kimberly, Kailey, Harmony, and Precious is not moot. (Cf. In re
Rashad D. (2021) 63 Cal.App.5th 156, 164 [appeal was moot
because “to the extent an appellant argues, as here, that the
challenged jurisdiction finding resulted in an adverse juvenile
custody order and seeks to have that custody order set aside, in
addition to the appeal from the jurisdiction finding, an appeal
from the orders terminating jurisdiction and awarding custody is
necessary for this court to be able to provide effective relief.”].)
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“A jurisdiction finding under section 300, subdivision (b)(1),
requires the Department to prove three elements: (1) the parent’s
or guardian’s neglectful conduct or failure or inability to protect
the child; (2) causation; and (3) serious physical harm or illness
or a substantial risk of serious physical harm or illness.” (In re
Cole L. (2021) 70 Cal.App.5th 591, 601; accord, In re L.W. (2019)
32 Cal.App.5th 840, 848; see In re R.T. (2017) 3 Cal.5th 622, 624
[“section 300(b)(1) authorizes dependency jurisdiction without a
finding that a parent is at fault or blameworthy for her failure or
inability to supervise or protect her child”].) “Although
section 300 requires proof the child is subject to the defined risk
of harm at the time of the jurisdiction hearing [citations], the
court need not wait until a child is seriously abused or injured to
assume jurisdiction and take steps necessary to protect the
child.” (In re Cole L., at pp. 601-602; accord, In re L.O. (2021)
67 Cal.App.5th 227, 238 [“‘Although there must be a present risk
of harm to the minor, the juvenile court may consider past events
to determine whether the child is presently in need of juvenile
court protection.’”].) “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 Cole L., at p. 602; accord, In re J.A.
(2020) 47 Cal.App.5th 1036, 1048.)
We review the juvenile court’s jurisdiction findings for
substantial evidence in light of the whole record. (In re I.C.
(2018) 4 Cal.5th 869, 892 [“the evidence supporting the
jurisdictional findings must be considered ‘“in the light of the
whole record”’ ‘to determine whether it discloses substantial
evidence’”]; In re R.T., supra, 3 Cal.5th at p. 633 [“‘In reviewing
the jurisdictional findings and disposition, we look to see if
substantial evidence, contradicted or uncontradicted, supports
13
them.’”].) Substantial evidence is “evidence which is reasonable,
credible, and of solid value.” (In re I.C., at p. 892; accord, In re
Cole L., supra, 70 Cal.App.5th at p. 602.) “‘[W]e draw all
reasonable inferences from the evidence to support the findings
and orders of the dependency court; we review the record in the
light most favorable to the court’s determinations; and we note
that issues of fact and credibility are the province of the trial
court.’” (In re R.T., at p. 633; accord, In re I.J. (2013)
56 Cal.4th 766, 773; In re Cole L., at p. 602 [“while substantial
evidence may consist of inferences, any inferences must rest on
the evidence; inferences based on speculation or conjecture
cannot support a finding”].) “The appellant has the burden of
showing there is no evidence of a sufficiently substantial nature
to support the findings or orders.” (In re E.E. (2020)
49 Cal.App.5th 195, 206; accord, In re D.B. (2018)
26 Cal.App.5th 320, 328-329.)
B. Substantial Evidence Supports the Jurisdiction Findings
Under Section 300, Subdivision (b)(1)
Mother contends there was not substantial evidence to
support the jurisdiction findings under section 300,
subdivision (b)(1), that the children were at substantial risk of
physical harm as a result of her marijuana use, mental health
and emotional issues, and absences from the home. The
Department focuses in its brief on Mother’s repeated absences as
a caretaker and her mental illness, arguing they created a risk of
serious physical harm to the children. We agree substantial
evidence supports the jurisdiction findings based on Mother’s
failure to provide adult supervision of the children for extended
periods of time.
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A neighbor reported Mother left the children home alone
for days. Kimberly, who had physical and intellectual
disabilities, stated that in Mother’s absence she and Kailey took
care of the younger children—Michelangelo, Harmony, and
Precious. Mother was not home by the children’s bedtime at
8:30 p.m. And although Mother was generally home by the
mornings, sometimes she was not. Kimberly later denied Mother
left her and her siblings home without adult supervision for
extended periods, but she acknowledged she sometimes did not
know Mother’s location when Mother left the home. And Kailey
told the dependency investigator that at times Mother would stay
at Maria’s home overnight and come home early the next
morning before the children wakened. Harmony reported Mother
would leave for days without telling the children where she was
going. And Precious confirmed that Mother left the children
during the day and returned the following morning. Precious
also told Jose that on one occasion the children did not eat
anything for two days.
Michelangelo denied Mother left him and his siblings alone
overnight, stating Mother was only gone for two to three hours to
go shopping. But the juvenile court did not credit Michelangelo’s
statements, finding the older children (Michelangelo was 11)
were not truthful because they “appear to be protecting their
mother.” And the court found credible Harmony’s statement that
Mother left the children alone for days.
Mother’s conduct in leaving her 16-year old and 14-year old
children in charge of caring for their 11-year-old, seven-year-old
and six-year-old siblings for extended periods of time, sometimes
overnight or for days, with no adult supervision (and no way for
the children to contact her) created a substantial risk of harm to
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the children, especially to the younger children. There was no
adult present to provide care for the children in case of an
emergency, nor was there an adult to meet the children’s daily
needs. And on at least one occasion the children did not eat for
two days because Mother left them without adequate food.
Mother denied she left the children home alone without
adult supervision for extended periods of time. She claimed she
either took Harmony and Precious with her when she ran
errands or dropped the children off at the homes of maternal
relatives. But the court found the accounts of the neighbor and
children describing an absent mother were more credible.
Moreover, Mother’s failure to acknowledge her neglectful conduct
further supports the juvenile court’s finding the lack of adult
supervision created a substantial risk of harm to the children.
(In re A.F. (2016) 3 Cal.App.5th 283, 293 [“In light of mother’s
failure to recognize the risks to which she was exposing the
minor, there was no reason to believe the conditions would not
persist should the minor remain in her home.”]; In re Gabriel K.
(2012) 203 Cal.App.4th 188, 197 [“One cannot correct a problem
one fails to acknowledge.”]; In re Esmeralda B. (1992)
11 Cal.App.4th 1036, 1044 [“[D]enial is a factor often relevant to
determining whether persons are likely to modify their behavior
in the future without court supervision.”].)
Because substantial evidence supports dependency
jurisdiction under section 300, subdivision (b)(1), based on
Mother’s failure to provide adult supervision, we need not
consider the two other bases for jurisdiction—Mother’s marijuana
abuse and her mental and emotional problems. (See In re I.J.,
supra, 56 Cal.4th at p. 773 [“‘When a dependency petition alleges
multiple grounds for its assertion that a minor comes within the
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dependency court’s jurisdiction, a reviewing court can affirm the
juvenile court’s finding of jurisdiction over the minor if any one of
the statutory bases for jurisdiction that are enumerated in the
petition is supported by substantial evidence. In such a case, the
reviewing court need not consider whether any or all of the other
alleged statutory grounds for jurisdiction are supported by the
evidence.’”]; In re J.N. (2021) 62 Cal.App.5th 767, 774 [same]; In
re Madison S. (2017) 15 Cal.App.5th 308, 328-329 [same].)
DISPOSITION
The juvenile court’s jurisdiction findings and disposition
orders, as well as the orders terminating jurisdiction and
entering the final custody orders, are affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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