In re M.A. CA2/3 ( 2023 )

Filed 5/18/23 In re M.A. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
In re M.A., a Person Coming B316326
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 21CCJP03185
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
R.A. et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Tamara Hall, Judge. Affirmed, dismissed.
Elizabeth Klippi, under appointment by the Court of
Appeal, for Defendant and Appellant R.A.
Sean Angele Burleigh, under appointment by the Court
of Appeal, for Defendant and Appellant M.P.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, Sarah Vesecky, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
Mother R.A. and father M.P. appealed after the juvenile
court took jurisdiction over their child, M.A., and removed him
from their custody. The court found mother used drugs while
pregnant with M.A. and has unresolved mental health issues.
Mother admitted using drugs, but she insisted she had not
known she was pregnant until the day she gave birth.
On appeal, mother and father challenge the sufficiency
of the evidence supporting the court’s jurisdictional findings
and dispositional orders, and father additionally challenges
the court’s finding that he is an alleged, rather than presumed,
father. Unfortunately, father passed away while his appeal
was pending. Accordingly, we dismiss his appeal as moot.
As to mother’s appeal, we affirm the court’s findings and orders.
FACTUAL AND PROCEDURAL BACKGROUND
1. Background
The Los Angeles County Department of Children and
Family Services (Department) received a report that mother
had tested positive for marijuana and benzodiazepines after
giving birth to M.A. in June 2021. One of the nurses said mother
showed signs of “ ‘very active bi-polar’ ” disorder. According to
the nurse, mother paced and did not respond to the staff’s
directions related to M.A.’s care. Mother refused to hold M.A. the
way the nursing staff had directed her, remarking, “ ‘[H]e’s my
baby, I know him, I know what he likes.’ ” At one point, mother
covered herself and the child with a scarf. Hospital staff told
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mother not to put the scarf over M.A., because he had been born
with respiratory issues. Mother nevertheless continued to do so.
Mother told the Department she met father in New York,
and they had unprotected sex in October 2020. Mother moved
to California the next day. Father remained in New York.
Mother claimed she had not known she was pregnant—
and had not suspected she was pregnant—until the day she
gave birth. Mother believed she had stopped menstruating
due to stress, rather than pregnancy. Mother provided the
Department a photograph from May 2021, which she insisted
showed she had no visible signs of pregnancy. A social worker
who viewed the photo, however, said mother had a visible
“baby bump” and appeared pregnant.
Two months before giving birth, mother told maternal
great aunt that she had stopped menstruating. Maternal great
aunt responded that mother was probably pregnant. After the
conversation, mother made an appointment with an OBGYN.
The night before the appointment, she started feeling “ ‘a lot of
stress’ ” and decided not to go. Mother said she would become
anxious whenever she thought about being pregnant, which she
attributed to a prior unsuccessful pregnancy.
Mother said she started having severe abdominal pain two
days before M.A.’s birth. She thought she was constipated, so she
ate a psychedelic mushroom, which had relieved her constipation
in the past. Mother ate a mushroom the day before and the
day of M.A.’s birth. The pain, however, intensified, so mother
eventually went to the hospital.
Mother admitted using marijuana during her pregnancy
to treat chronic pain. However, she denied knowing why she had
tested positive for benzodiazepines, and she speculated that it
3
may have been caused by “facial cleansing.” According to
a nurse, a positive test result for benzodiazepines is usually
a sign of narcotics use.
Mother reported she had been hospitalized twice for
psychiatric issues in 2013. Doctors prescribed her lithium
after the first hospitalization, but she stopped taking it because
she did not believe she had mental health issues. Mother was
hospitalized another time in Turkey, which she described as
an “ ‘accident.’ ” According to mother, she had been mistaken
for a Ukrainian sex worker. Mother said the hospitalizations
were the result of misunderstandings, and she insisted she
does not have bi-polar disorder. She said she does not believe
in traditional therapy and instead talks to friends who are
“ ‘healers.’ ”
Mother had been living with maternal grandparents
while pregnant, but she agreed to move out of their house
so the grandparents could care for M.A. Mother also agreed
to participate in drug and alcohol testing, enroll in a substance
abuse program, and undergo a mental health assessment.
Mother said she would stop using marijuana because she wanted
to breastfeed M.A. She would instead rely on ibuprofen and
“ ‘natural foods’ ” to treat her pain.
Father, who lived in New York, told the Department he
assumed M.A. is his child. Maternal uncle had called father a
month before mother gave birth and told him she was pregnant.
Father said there were pictures of mother showing she was
pregnant, but mother insisted she was not. Father believed
mother denied being pregnant so she could continue using
marijuana and drinking alcohol. He said he was aware mother
had used cocaine, marijuana, and alcohol in the past.
4
Father said mother has “loving intentions,” but her mental
health can be unstable. According to father, mother had been
hospitalized twice in the United States for mental health reasons.
At one point, she went to France to avoid being hospitalized
again. Mother told him she had been prescribed medication,
but she did not take it.
Maternal grandmother claimed she did not know mother
was pregnant until the day she gave birth. She said mother had
gained weight, but did not appear to be pregnant. The family
questioned mother many times about whether she was pregnant
given her stomach growth, but mother always denied it. The day
before mother gave birth, maternal grandmother gave her money,
which mother used to purchase marijuana and mushrooms.
According to maternal grandmother, mother had been
diagnosed with bi-polar disorder. She was hospitalized twice in
New York and once in Turkey for mental health issues. Maternal
grandmother said mental health issues ran in her family;
maternal uncle and maternal great grandmother had been
diagnosed with schizophrenia.
Maternal grandfather reported that mother had a “bump”
on her stomach, but she had denied being pregnant. He said
that, although mother had been diagnosed with bi-polar disorder,
she refused to accept her diagnosis and would not take medicine
to treat it. He thought she needed intensive mental health
services.
2. Dependency proceedings
The Department filed a petition asserting M.A. is a person
described by Welfare and Institutions Code section 300,
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subdivision (b).1 As to mother, the Department alleged two bases
for jurisdiction: (1) mother has a history of substance abuse and
used psychedelic mushrooms, benzodiazepines, marijuana, and
alcohol while pregnant with M.A.; and (2) mother has a history
of mental and emotional problems—including bi-polar disorder
and general anxiety—yet refused to take medication or
participate in consistent mental health treatment. As to father,
the Department alleged he failed to protect M.A. from mother’s
substance abuse.
The court held a detention hearing on July 14, 2021, at
which it found father to be an alleged father. The court detained
M.A. and ordered mother not to breastfeed the child. Father,
however, photographed mother breastfeeding M.A. two days after
the hearing. Maternal grandparents asked father not to report
that fact to the Department.
In August 2021, the San Bernardino County Department of
Behavioral Health assessed mother for substance abuse services
and determined she did not meet the criteria for treatment.
Mother reportedly told the assessor she did not “use any kind
of drugs, prescribed or illegal. I have no desire to use any form
of substance.” Mother enrolled in a different substance abuse
program, along with a parenting class. She consistently tested
negative for drugs, with one “no show,” and received positive
feedback from her counselor.
The Department of Mental Health evaluated mother and
determined she was not eligible for services. Tri City Mental
Health also assessed mother, but it did not recommend any
services. Mother provided the Department paperwork stating
1 Undesignated statutory references are to the Welfare and
Institutions Code.
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her “ ‘mental health condition does not meet the medical
necessary criteria to be eligible for specialty mental health
services.’ ” According to maternal grandmother, mother had
been “parading paperwork that indicates” she does not have
a mental health diagnosis.
On September 16, 2021, mother sent a social worker an
extremely long text message purporting to explain her positive
test for benzodiazepines. According to the text message, around
three years earlier, mother discovered father had put medication
in her coffee. Mother went through father’s cabinets and found
“a bottle hidden way in the back of an empty cabinet at the
very top with a very long name which rings the bell to this
benzodiazepine.” Mother then explained that she recently
learned her uncle had also secretly put medication in her aunt’s
food. The social worker remarked that the text message was
an example of mother’s tangential thinking.
3. Jurisdiction and disposition hearing
The court held a combined jurisdiction and disposition
hearing on October 26, 2021. At the hearing, mother urged the
court to dismiss the petition. She argued her history of substance
abuse did not pose a current risk of harm because she had been
open about her past drug use and does not currently abuse any
substances. Mother pointed to her negative drug test results as
proof that she was willing and able to stop using drugs. Mother
also argued there was insufficient evidence that she suffered
from any mental health issues. She relied on the fact that she
was denied mental health services, as well as the lack of direct
evidence of a diagnosis. Mother alternatively asked that M.A.
be returned to her custody on the condition that she live with
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maternal grandparents, who would be able to “provide an extra
set of eyes.”
The court sustained the petition and took jurisdiction
over M.A. The court found mother has unresolved substance
abuse issues, and that she was not credible when she claimed
not to know she was pregnant. The court also found father knew
mother was using drugs while pregnant, yet he did nothing
to try to protect the child. As to mother’s mental health issues,
the court found she suffers from bipolar disorder, yet she refused
treatment and self-medicated with alcohol and drugs.
Turning to disposition, the court removed M.A. from his
parents’ custody. The court denied father’s request for a “home
of parent” placement, noting he is merely an alleged father and
it would be detrimental to release M.A. to his custody. The court
also rejected mother’s argument that living with maternal
grandparents would be sufficient to protect M.A. “based on the
evidence and the [jurisdictional] findings that the court has
already made.”
Mother and father timely appealed.
DISCUSSION
1. Father’s appeal is moot
In his opening brief on appeal, father challenged the
juvenile court’s jurisdictional findings and removal order, as well
as its finding that he is an alleged, rather than presumed, father.
In its respondent’s brief, the Department noted the latter issue
appears to be moot because the court had since placed M.A. with
father. Nevertheless, the Department indicated it did not object
to this court directing the juvenile court to enter an order finding
father to be M.A.’s presumed father. After the Department filed
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its brief, father passed away, and the Department moved to
dismiss his appeal as moot.2
“ ‘An 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.
[Citations.]’ ” (In re Anna S. (2010) 180 Cal.App.4th 1489, 1498;
see In re D.P. (2023) 14 Cal.5th 266, 276 (D.P.).) “For relief to
be ‘effective,’ two requirements must be met. First, the plaintiff
must complain of an ongoing harm. Second, the harm must be
redressable or capable of being rectified by the outcome the
plaintiff seeks.” (D.P., at p. 276.) Speculative future harm is
not sufficient to avoid mootness. (Id. at p. 278.)
Even when a case is moot, a court has inherent discretion
to reach the merits of the dispute. (D.P., supra, 14 Cal.5th at
p. 282.) In deciding whether to exercise that discretion, “a court
should be guided by the overarching goals of the dependency
system: ‘to provide maximum safety and protection for children’
with a ‘focus’ on ‘the preservation of the family as well as the
safety, protection, and physical and emotional well-being of the
child.’ ” (Id. at p. 286.) Courts generally will exercise discretion
to review a moot case when it presents an issue of broad public
interest that is likely to recur, the controversy between the
parties may recur, or a material question remains for the court
to determine. (Id. at p. 282.) In dependency cases, additional
relevant factors include whether the challenged findings could
be prejudicial, affect other dependency proceedings, or are based
2 We grant the Department’s February 8, 2023 motion
to take judicial notice of juvenile court records that document
father’s death. (See Evid. Code, §§ 452, subd. (d), 459.)
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on particularly pernicious or stigmatizing conduct. (See id. at
pp. 285–286.)
Because father passed away while his appeal was pending,
the juvenile court’s findings and orders are no longer causing him
harm. As a result, even if we were to grant father the relief he
requested, the relief would not be effective. Accordingly, father’s
appeal is moot, and we dismiss it as such. (See In re A.Z. (2010)
190 Cal.App.4th 1177, 1181 [a father’s death rendered moot
his appeal of a juvenile court’s order terminating his parental
rights].)
Mother concedes that father’s appeal is moot to the extent
it challenges the jurisdictional findings and removal order.
However, she contends father’s challenge to his status as an
alleged father is not moot because a paternity finding could have
practical benefits for M.A. She argues that, although it is not
clear which state’s laws will apply to any distribution of father’s
assets, a declaration from a California court that father is M.A.’s
legal parent “should assist this child in asserting any rights he
has as Father’s heir.” Therefore, she argues, this court’s decision
would help ensure M.A. enjoys all the relevant financial and
other benefits available to him as father’s child.
Contrary to mother’s contentions, the fact that a favorable
decision could have tangential positive benefits for M.A. does not
render father’s appeal not moot. Nor does it provide a sufficient
reason to exercise our inherent discretion to decide father’s
appeal on the merits, despite its mootness. While we
acknowledge it is possible a finding that father is M.A.’s
presumed parent could be useful to proving M.A.’s status as
his heir, mother has not shown the finding itself would entitle
M.A. to any financial benefits or offer the child any other concrete
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relief; that such a finding could be helpful in the future is far too
speculative. Nor has mother shown the juvenile court’s finding
that father is an alleged parent, if left to stand, would harm M.A.
in any way. Tellingly, neither father’s counsel nor M.A. has
asked us to decide father’s appeal. Accordingly, we decline to
exercise our inherent discretion to overlook the mootness issue.
2. Substantial evidence supports the court’s
jurisdictional findings as to mother
Mother contends the juvenile court’s jurisdictional findings
related to her substance abuse and mental health issues are not
supported by substantial evidence.
a. Relevant law and standard of review
“In dependency proceedings, the social services agency
has the burden to prove by a preponderance of the evidence that
the minor who is the subject of the dependency petition comes
under the juvenile court’s jurisdiction. [Citations.] We review
the jurisdictional findings for substantial evidence. [Citation.]
We consider the entire record, drawing all reasonable inferences
in support of the juvenile court’s findings and affirming the order
even if other evidence supports a different finding. [Citation.]
We do not consider the credibility of witnesses or reweigh
the evidence. [Citation.] Substantial evidence does not mean
‘any evidence,’ however, and we ultimately consider whether
a reasonable trier of fact would make the challenged ruling in
light of the entire record. [Citation.] The parent has the burden
on appeal of showing there is insufficient evidence to support
the juvenile court’s order.” (In re Isabella F. (2014) 226
Cal.App.4th 128, 137–138.)
Section 300, subdivision (b)(1) authorizes dependency
jurisdiction where “[t]he child has suffered, or there is a
11
substantial risk that the child will suffer, serious physical harm
or illness, as a result of . . . [t]he failure or inability of the child’s
parent or guardian to adequately supervise or protect the child
. . . [or] to provide regular care for the child due to the parent’s
or guardian’s mental illness, developmental disability, or
substance abuse.” Because the statute permits jurisdiction “only
so long as is necessary to protect the child from risk of suffering
serious physical harm or illness” (id., subd. (b)(3)), the evidence
must show the child faces a current risk of serious physical harm.
(See In re J.N. (2010) 181 Cal.App.4th 1010, 1023.)
Thus, section 300, subdivision (b) requires a showing
of “concrete harm or risk of physical harm to the child.” (In re
Rocco M. (1991) 1 Cal.App.4th 814, 820–821.) “As appellate
courts have repeatedly stressed, ‘ “[s]ubdivision (b) means what
it says. Before courts and agencies can exert jurisdiction under
section 300, subdivision (b), there must be evidence indicating
that the child is exposed to a substantial risk of serious physical
harm or illness.” ’ ” (In re Jesus M. (2015) 235 Cal.App.4th 104,
111.) “The purpose of a dependency proceeding is to protect
the child, rather than prosecute or punish the parent.” (In re
Emily L. (2021) 73 Cal.App.5th 1, 15.)
b. Mother’s substance abuse
Generally, a parent’s substance abuse, “without more,” is an
insufficient basis to assert dependency jurisdiction. (In re L.W.
(2019) 32 Cal.App.5th 840, 849.) Rather, the Department must
show the parent’s substance abuse harms the child or places
the child at substantial risk of harm. (In re Drake M. (2012)
211 Cal.App.4th 754, 766–767 (Drake M.), disapproved of
on other grounds by D.P., supra, 14 Cal.5th at pp. 282–283;
see L.W., at p. 850 [mother engaged in dangerous behavior due
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to substance abuse placing child at risk of harm].) However,
when a child is “ ‘of such tender years that the absence of
adequate supervision and care poses an inherent risk to their
physical health and safety,’ ” a “finding of substance abuse is
prima facie evidence of the inability of a parent or guardian to
provide regular care resulting in a substantial risk of physical
harm.” (Drake M., at pp. 766–767.)
In re Christopher R. (2014) 225 Cal.App.4th 1210(Christopher R.) is instructive. In that case, the juvenile court
took jurisdiction over a child after finding the mother had used
cocaine while pregnant. The Court of Appeal affirmed, reasoning
the mother’s repeated use of cocaine, including while pregnant,
qualified as substance abuse for purposes of section 300,
subdivision (b) because it constituted recurrent substance use
that resulted in her failure to fulfill a major role obligation.
(Christopher R., at p. 1218.) Further, the court concluded the
mother’s “use of cocaine during the last months of her pregnancy
confirmed her poor judgment and willingness to endanger her
children’s safety due to substance abuse.” (Id. at p. 1219.)
Here, there is overwhelming evidence that mother used
marijuana, psychedelic mushrooms, and benzodiazepines while
pregnant with M.A. As mother seems to concede, her use of
those substances constituted substance abuse for purposes of
section 300, subdivision (b)(1). (See Christopher R., supra, 225
Cal.App.4th at pp. 1218–1219.) Because M.A. was of “tender
years” as of the jurisdiction hearing, mother’s substance abuse
is prima facie evidence of her inability to provide regular care
resulting in a substantial risk of harm to the child. (Ibid.; see
Drake M., supra, 211 Cal.App.4th at p. 767.) Moreover, as in
Christopher R., mother’s drug use “during the last months of
13
her pregnancy confirmed her poor judgment and willingness
to endanger her [child’s] safety due to substance abuse.”
(Christopher R., at p. 1219.)
Mother insists that, despite her past drug use, there
is insufficient evidence of a risk of harm to M.A. as of the
jurisdiction hearing. In support, she points out she was open
about her past drug use, promised not to use drugs in the future,
consistently tested negative for drugs, voluntarily enrolled in
a treatment program, and had completed several classes with
positive feedback.
Contrary to mother’s contentions, there is sufficient
evidence from which the court reasonably could have found her
substance abuse continued to pose a substantial risk of harm
to M.A. Although mother admitted using some drugs while
pregnant, she was not entirely forthcoming with the Department.
Mother, for example, repeatedly denied using benzodiazepines,
despite testing positive for the drug shortly after giving birth.
Rather than admit her use of the drug, mother concocted bizarre
and implausible explanations for the positive test, including that
it was the result of “facial cleansing” and that father had secretly
drugged her. On appeal, mother speculates the test might have
been the result of medication given to her at the emergency room.
While that is certainly possible, the record does not compel such
a finding. In fact, a nurse failed to mention it as a possibility
when asked what might have caused the positive test result.
Mother further minimized the severity of her substance
abuse issues by insisting she had not known she was pregnant,
an assertion that strains credulity. The record shows that
after having unprotected sex with father, mother stopped
menstruating and gained significant weight in her midsection.
14
Mother’s family members repeatedly questioned her about
whether she was pregnant, and mother went so far as to make
an appointment with an OBGYN. On this record, the juvenile
court reasonably rejected mother’s contention that she was not
aware she was pregnant.
The court also reasonably could have concluded mother’s
participation in services was not sufficient to alleviate the risk
of harm to M.A. Although mother tested negative for drugs
several times, she was a “no show” for one test, which the court
could have presumed was because she would have tested positive.
(See In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384 [“a
missed drug test, without adequate justification, is ‘properly
considered the equivalent of a positive test result’ ”].) Mother
also told a substance abuse program assessor she did not
“use any kind of drugs, prescribed or illegal. I have no desire
to use any form of substance.” Given mother had recently been
unable, or unwilling, to abstain from using substances during her
pregnancy, the juvenile court reasonably could have concluded
this was a lie.
Mother’s reliance on In re J.A. (2020) 47 Cal.App.5th 1036is misplaced. In that case, the court determined jurisdiction was
improper where a mother used edible marijuana to treat her
pregnancy symptoms after having researched it was a relatively
safe alternative to other medications. (Id. at p. 1038.) Here,
the record does not show mother believed her drug use during
pregnancy was safe. Instead, she simply denied being pregnant,
a claim the juvenile court reasonably rejected. Therefore,
as compared to J.A., mother’s substance abuse reflects a
significantly more severe deficiency in judgment and willingness
to endanger her child’s safety.
15
In re Rebecca C. (2014) 228 Cal.App.4th 720 is also
readily distinguishable. In that case, the court concluded the
Department failed to produce sufficient evidence that the
mother’s substance abuse posed a risk of harm to her daughter,
who was a teenager. (Id. at pp. 722, 727–728.) Here, M.A.
was four months old at the time of the jurisdiction hearing.
Therefore, unlike in Rebecca C., mother’s substance abuse is
prima facie evidence of her inability to provide regular care
resulting in a substantial risk of physical harm, and the
Department was not required to present additional evidence
on the issue.
c. Mother’s mental health issues
Mother argues the court’s jurisdictional findings related
to her mental health issues are not supported by substantial
evidence. She concedes there is evidence that she had
“outstanding mental health issues such as bipolar disorder,” but
she argues there is not sufficient evidence that those issues posed
a risk of harm to M.A. In support, she points to evidence that
she had appropriate visitations with the child, sought out mental
health services, and submitted to substance abuse testing.
As a general matter, when a juvenile court asserts
jurisdiction over a minor based on multiple grounds “ ‘a reviewing
court can affirm the . . . court’s finding of jurisdiction over the
minor if any one of the statutory bases for jurisdiction . . .
is supported by substantial evidence.’ ” (Drake M., supra, 211
Cal.App.4th at p. 762.) As the jurisdictional findings related
to mother’s substance abuse support jurisdiction over M.A.,
we “ ‘need not consider whether . . . the other alleged statutory
grounds for jurisdiction are supported by the evidence.’ ” (Ibid.)
16
Nevertheless, out of an abundance of caution, we consider the
merits of mother’s arguments related to her mental health issues.
Contrary to mother’s contentions, there is substantial
evidence of a direct link between her mental health issues and
a risk of harm to M.A. The court, for example, reasonably could
have concluded mother used drugs during her pregnancy in order
to self-medicate. The court also reasonably could have found
mother’s mental health issues led her to forgo prenatal care,
which placed M.A. at substantial risk of harm. Indeed, mother
told a social worker she cancelled an appointment with an
OBGYN because she was experiencing too much stress and
anxiety. Mother also reported that she became anxious whenever
she thought about being pregnant, which would help explain
her decision to forgo prenatal care.
The juvenile court also reasonably could have concluded
mother had not sufficiently addressed her mental health issues
as of the jurisdiction hearing. The record shows mother has
a long history of severe mental health issues, which resulted
in at least three hospitalizations. Despite this, mother insisted
she did not suffer from mental health issues and refused to take
prescribed medication. While it is true that mother had recently
been denied mental health services, the court reasonably could
have determined it was because she had failed to disclose her
extensive history of mental health issues to the service providers.
Mother’s reliance on In re James R. (2009) 176 Cal.App.4th
129 is misplaced. In that case, the mother had a history of
mental instability, but there was no evidence she had abused
or neglected her children. (Id. at p. 136.) Here, in contrast,
the record supports a finding that mother’s mental health issues
caused her to self-medicate with drugs while pregnant and forgo
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prenatal care, both of which placed M.A. at substantial risk of
physical harm. Accordingly, there is a direct link between
mother’s mental health issues and a risk of harm to M.A.
Mother’s reliance on In re A.L. (2017) 18 Cal.App.5th 1044is similarly misplaced. In A.L., the children were significantly
older than M.A.: one child was 15 years old and the other was 11.
(Id. at pp. 1045–1046.) The children also lived with their father,
who was able to protect and care for them while their mother was
experiencing mental health issues. (See id. at p. 1047.) Here,
in contrast, M.A. was of tender years and entirely dependent
on mother for his care. As a result, mother’s unresolved mental
health issue posed a significantly greater risk of harm than
in A.L.
3. Substantial evidence supports the court’s order
removing M.A. from mother’s custody
Mother argues the court’s order removing M.A. from her
custody is not supported by substantial evidence because there
was no risk of harm to the child as of the disposition hearing.
In support, mother points out that she repeatedly tested negative
for drugs, underwent mental health assessments, participated
in a substance abuse treatment program and parenting class,
and was consistently appropriate during visits.
When a minor has been adjudged a dependent child of
the court under section 300, the juvenile court may limit the
control to be exercised over the dependent child by the parent
or guardian. (§ 361, subd. (a).) A dependent child may not
be taken from the physical custody of the parent with whom
the child resides unless the juvenile court finds by clear and
convincing evidence that there is a “substantial danger to the
physical health, safety, protection, or physical or emotional
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well-being of the minor if the minor were returned home, and
there are no reasonable means by which the minor’s physical
health can be protected” without removal. (Id., subd. (c)(1); see
In re Ashly F. (2014) 225 Cal.App.4th 803, 809–810 (Ashly F.).)
“ ‘The court may consider a parent’s past conduct as well as
present circumstances.’ ” (In re John M. (2012) 212 Cal.App.4th
1117, 1126.) “ ‘A removal order is proper if it is based on proof
of (1) parental inability to provide proper care for the minor and
(2) potential detriment to the minor if he or she remains with
the parent.’ ” (In re Francisco D. (2014) 230 Cal.App.4th 73, 83.)
When reviewing findings that must be proved by clear
and convincing evidence, “the question before the appellate court
is whether the record as a whole contains substantial evidence
from which a reasonable fact finder could have found it highly
probable that the fact was true. Consistent with well-established
principles governing review for sufficiency of the evidence, in
making this assessment the appellate court must view the record
in the light most favorable to the prevailing party below and
give due deference to how the trier of fact may have evaluated
the credibility of witnesses, resolved conflicts in the evidence,
and drawn reasonable inferences from the evidence.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 995–996; see also
In re Jasmon O. (1994) 8 Cal.4th 398, 423.) The appellant has
the burden of showing there is insufficient evidence to support
the juvenile court’s findings or orders. (In re Geoffrey G. (1979)
98 Cal.App.3d 412, 420.)
Here, substantial evidence supports the court’s removal
order. As discussed above, the record shows mother has a long
history of substance abuse and mental health issues. As a result
of those issues, she exposed M.A. to a substantial risk of harm by
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forgoing prenatal care and using benzodiazepines, marijuana,
and psychedelic mushrooms while pregnant. Although mother
was somewhat candid about her past drug use and voluntarily
participated in services, she continued to insist—despite
overwhelming evidence to the contrary—she did not struggle
with substance abuse or mental health issues. Mother also
downplayed the extent of her prior substance abuse—and the risk
of harm it posed to M.A.—by making the preposterous claim that
she had not known she was pregnant. On this record, the court
reasonably could have concluded that, until mother acknowledges
and addresses her substance abuse and mental health issues,
there is a substantial risk to M.A.’s health, safety, and
well-being while in her custody. (See In re Gabriel K. (2012)
203 Cal.App.4th 188, 197 [“[o]ne cannot correct a problem
one fails to acknowledge”].)
Mother contends removal was improper because the court
could have ordered her to reside with maternal grandparents,
who would have ensured M.A.’s safety. Relatedly, mother argues
the court failed to comply with section 361, subdivision (e), which
states a juvenile court “shall make a determination as to whether
reasonable efforts were made to prevent or to eliminate the need
for removal of the minor from his or her home.” We reject both
contentions.
Contrary to mother’s suggestions, the court expressly
found there were no reasonable means to protect M.A. without
removing him from her custody. The court also expressly rejected
mother’s argument that ordering her to live with maternal
grandparents would be sufficient to protect the child. That
decision is supported by substantial evidence. In arguing
otherwise, mother overlooks that she lived with maternal
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grandparents while pregnant with M.A., yet she continued to use
drugs and forwent prenatal care. In fact, maternal grandmother
admitted giving mother money to buy drugs when she was near
full-term and visibly pregnant. The record also shows mother
continued to breastfeed M.A. after the court had ordered her
not to, and maternal grandparents discouraged father from
reporting that fact to the Department. Given M.A.’s need for
constant care, mother’s willingness to violate court orders, and
maternal grandparents’ inability to control mother’s behavior,
the juvenile court reasonably could have concluded ordering
mother to live with maternal grandparents would not be
sufficient to protect the child.
Mother relies upon Ashly F., supra, 225 Cal.App.4th 803,
to argue the juvenile court failed to consider reasonable means
short of removal; however, the case is inapposite. In reversing
the disposition order, the Ashly F. court concluded the
undisputed evidence contradicted the juvenile court’s finding
because “the court was required to ‘consider, as a reasonable
means to protect the minor, the option of removing an offending
parent . . . from the home,’ ” and “[n]othing in the record shows
that the court considered this option even though the evidence
showed that it was available.” (Id. at p. 810.) Here, in contrast,
the court expressly considered, but rejected, returning M.A. to
mother’s custody on the condition that she live with maternal
grandparents. As discussed above, that finding is supported
by substantial evidence.
Mother’s reliance on In re I.R. (2021) 61 Cal.App.5th 510is also misplaced. In I.R., the juvenile court removed the children
following an incident of domestic violence between the parents.
The Court of Appeal reversed, reasoning there was no longer a
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risk to the children’s safety because the parents had separated
and had no plans to reunite. (Id. at pp. 521–522.) Here,
the record supports the court’s finding that mother failed to
acknowledge meaningfully, let alone resolve, her substance abuse
and mental health issues. Accordingly, the risk to M.A. was still
present as of the disposition hearing.
Mother alternatively argues the Department failed to
comply with rule 5.690(a)(1)(B)(i) of the California Rules of Court,
which requires the Department to include in its report a
“discussion of the reasonable efforts made to prevent or eliminate
removal.” We agree with the Department that mother forfeited
this issue by failing to raise it below. (See In re M.V. (2014)
225 Cal.App.4th 1495, 1508 [“courts have repeatedly held that
a party’s failure to object forfeits appellate review of the adequacy
of—or the failure to prepare—mandatory assessment reports
in juvenile proceedings”].) Accordingly, we need not consider
mother’s arguments.
Regardless, even assuming the Department’s report was
insufficient, mother does not identify any reasonable efforts the
Department could have taken to prevent removal, other than
requiring that she live with maternal grandparents. The court,
however, expressly considered, and properly rejected, that option.
Under these circumstances, any failure to comply with California
Rules of Court, rule 5.690(a)(1)(B)(i) was harmless.
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DISPOSITION
We dismiss father’s appeal. We affirm the juvenile court’s
jurisdictional findings and dispositional orders as to mother.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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