In re Ta.C. CA2/1 ( 2023 )

Filed 5/24/23 In re Ta.C. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
In re Ta.C., B320451
a Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 22CCJP00570)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
T.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daniel Zeke Zeidler, Judge. Affirmed.
Sarah Vaona, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, Navid Nakhjavani, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_________________________
T.C. (Father) appeals from the juvenile court’s assumption
of jurisdiction over his infant son Ta.C. based in part on findings
related to Father’s marijuana use, as well as the court’s related
dispositional order removing Ta. from Father’s custody. Father
contends that substantial evidence does not support the juvenile
court’s jurisdictional and dispositional findings. We disagree and
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying proceedings involving Ta. included
allegations against Ta.’s mother K.K. (Mother) and against
Father beyond those relating to Father’s drug use. Because this
appeal involves only Father’s challenges to findings concerning
his alleged drug use,1 we limit our recitation of the underlying
facts and procedural history accordingly.
A. Dependency Proceedings Involving Father’s Other
Children
Before Ta.’s birth, Father was involved in dependency
proceedings involving Ta.’s half-siblings, O.C. (born March 2005)
1 Mother also appealed from the jurisdiction and
dispositional order, and her appointed counsel filed a brief
pursuant to In re Phoenix H. (2009) 47 Cal.4th 835. The appeal
was dismissed on March 7, 2023, after Mother failed to
personally submit any appellate contentions for court
consideration.
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and B.C. (born February 2008). Neither of those other
dependency matters involve assertions about Father’s alleged
substance abuse. In 2016, the juvenile court sustained a Welfare
and Institutions Code2 section 300 petition alleging Father’s
mental health issues placed B.C. at risk of harm. The juvenile
court subsequently terminated Father’s family reunification
services and ordered a permanent plan of legal guardianship.
The guardianship was later dissolved, and the juvenile court
reinstated jurisdiction over B.C. in September 2021.
In January 2022, DCFS filed a section 300 petition on
behalf of O.C. alleging that the child’s mother emotionally abused
the child, that O.C.’s mother failed to provide the child with
necessary mental health services, and that the mother’s male
companion engaged in frequent verbal arguments with the child.
The petition was later amended to allege Father’s history of
mental and emotional problems endangered O.C. and posed a
substantial risk of harm to the child.
B. Ta. Is Born and Tests Positive for Marijuana
Ta. was born in January 2022. After his birth, Ta. was
placed in the neonatal intensive care unit with respiratory
distress. DCFS received a referral indicating Mother had a long
history of methamphetamine use, and that Mother’s other
children had been removed from her care and her parental rights
terminated. Toxicology screens for Mother and Ta. were both
negative for drugs. A meconium screening for Ta., however, was
positive for marijuana.
2All unspecified statutory references are to the Welfare
and Institutions Code.
3
When speaking to a DCFS social worker, Mother asked
DCFS to consider releasing Ta. to Father. Father told DCFS he
was currently homeless but was in the process of securing
housing. Father reported that if Ta. was detained from Mother,
he wanted the child returned to his care.
Father denied any methamphetamine use; he did report
occasional marijuana use and agreed to drug test. Father tested
clean on January 24, 2022. He tested positive for marijuana on
January 26, 2022, at a high level—4358 ng/ml.3 When Ta. was
hospitalized, Mother and Father took turns visiting the child. A
hospital social worker was unaware of Father being under the
influence when visiting Ta., but stated that Father smelled of
marijuana during a visit on January 27, 2022.
During its investigation, DCFS received information from a
family friend of Mother, who expressed concern about Ta. being
returned to Mother or Father because of their respective criminal
histories and the fact they were both “on the run because of
drugs.” A later search showed Father had multiple prior
convictions including manslaughter in 2009, inflicting corporal
injury on an intimate partner in 2013, transportation of
controlled substances in 2014, and possession of cocaine in 2017.
While under court supervision, Father was arrested again in
3 Urine samples typically test positive for marijuana if the
amount of THC in the sample is more than 50 ng/ml. (Univ. of
Rochester Medical Center, Encyclopedia
[as of
May 19, 2023].) Father’s test was more than 85 times higher
than that amount.
4
2017 for possession of methamphetamine, and later convicted of a
parole violation in connection with that arrest.
C. DCFS Files a Section 300 Petition
On February 15, 2022, DCFS filed a section 300 petition on
behalf of Ta. based on Mother’s substance abuse (id., subds. (b),
(j); counts b-1, b-2, j-1, j-2), Mother’s history of mental health
problems (id., subds. (b), (j); counts b-4, j-2), Father’s substance
abuse (id., subd. (b); count b-3), and Father’s history of mental
health problems (id., subds. (b), (j); counts b-5, j-3).
On February 16, 2022, Father took a drug test which was
negative.
On February 18, 2022, the juvenile court found a prima
facie case that Ta. was a child described by section 300 and
detained him from the parents’ custody. Father was permitted
monitored visitation for a minimum of four hours per week.
On March 11, 2022, a dependency investigator asked
Father if he was willing to complete an on-demand drug test.
Father declined, saying he had already completed several drug
tests for DCFS.
In an April 2022 jurisdiction and disposition report, DCFS
noted Ta. had been discharged from the hospital and was placed
in the home of a foster parent. In an interview with DCFS,
Mother stated that in the six years she had been with Father, she
had never seen marijuana impede him, and she was confident in
his ability to parent. Father told DCFS he was in a car accident
in July 2021, and smoked medical marijuana as often as needed
for chronic pain. Father analogized his marijuana use to alcohol,
telling DCFS “it’s like alcohol is legal but [I] can’t go to the job
drunk, parenting is [a] 24[-]hour job, I haven’t had the
opportunity to be on the job, it’s an assumption, we assume that
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you medicate everyday and if you have the care of child I will
continue. I’m not stupid[;] at the end of the day I am intelligent
enough to realize cutoff time to take care of my child.”
An April 2022 jurisdiction/disposition report in O.C.’s case
noted Father drug tested on February 16, 2022, in connection
with that case and was negative. O.C.’s mother told DCFS in
March 2022 that Father had been homeless for a very long time,
and sold drugs while living in the street. Father had sent O.C.’s
mother a text message saying “I got good coke,” which she
forwarded to the DCFS investigator.
Returning to Ta.’s case, DCFS also reported to the juvenile
court that Father completed a mental health assessment and did
not meet the criteria for services. Father began participating in
drug abuse counseling services through Skid Row Development
Corporation in October 2021, remained compliant, and was
scheduled to finish the program on April 7, 2022. Father also
completed financial literacy and life skills courses.
DCFS also reported that it had received a referral
regarding Ta. on April 20, 2022. The child had not gained any
weight in the last three weeks and was admitted to the hospital
to determine if there was an organic cause for the lack of weight
gain. Ta. was in the hospital for a few days; he also had a history
of cardiac problems including a small hole in his heart. DCFS
was informed such a hole is a common issue with children, but it
requires monitoring.
DCFS requested that Father drug test on April 15, 2022;
Father did not comply and said he would test when it was court
ordered.
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D. Jurisdiction/Disposition Hearing
On May 10, 2022, the juvenile court held the jurisdiction
and disposition hearing. Father was present and represented by
counsel. The court admitted into evidence various reports from
DCFS and took judicial notice of the documents contained in the
case files for O.C. and B.C. The court also admitted into evidence
two exhibits offered by Father: an April 12, 2022, letter from the
Department of Mental Health stating Father did not meet the
criteria for mental health services, and a certificate that Father
had completed the 90-day outpatient drug and alcohol treatment
program through the Skid Row Development Corporation on
April 7, 2022.
Father’s counsel requested the juvenile court dismiss the
substance abuse count alleged against Father, noting Father
completed an outpatient program and provided several negative
drug tests. Father’s counsel acknowledged that Father initially
continued to smoke marijuana while participating in his
program, but that subsequent negative tests showed Father was
receptive to services.
Ta.’s counsel argued that Father’s prior drug-related
convictions, his January 26, 2022 drug test for DCFS that was
positive for marijuana at a very high level, and his visit with Ta.
in the neonatal intensive care unit while smelling of marijuana,
were sufficient to sustain the drug use count against Father.
Counsel for DCFS joined in the argument of minor’s counsel
regarding the drug use allegation against Father.
The juvenile court sustained the section 300 petition,
including multiple counts pertaining to Mother’s conduct and the
one count pertaining to Father’s substance abuse. The court
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dismissed the counts against Father related to his alleged mental
health issues.
The court then proceeded to disposition, stating it would
consider the same evidence and matters subject to judicial notice
from the jurisdiction hearing. The court ordered Ta. removed
from both parents and placed in the care of DCFS. Over DCFS’s
objection, DCFS was ordered to provide family reunification
services to Father and Mother. Father was ordered to submit to
random drug testing; if any test was positive, Father was ordered
to complete a rehabilitation program with random testing and
aftercare.4 Father was granted monitored visitation for a
minimum of four hours per week, with DCFS having discretion to
liberalize the visits.
DISCUSSION
A. Father’s Challenge to the Jurisdictional Allegation
Involving Substance Abuse
1. Father’s Appeal is Justiciable
DCFS initially argues that Father’s jurisdictional challenge
is non-justiciable because of the sustained and unchallenged
counts against Mother. “When a dependency petition alleges
multiple grounds for its assertion that a minor comes within the
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
4If Father missed a test, the court indicated DCFS could
present a walk-on request for further orders.
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alleged statutory grounds for jurisdiction are supported by the
evidence.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
Our Supreme Court recently held that when a parent
“demonstrate[s] a specific legal or practical consequence that
would be avoided upon reversal of” a jurisdictional finding, an
appeal is not moot. (In re D.P. (2023) 14 Cal.5th 266, 273.) We
reject DCFS’s contention that the sustained drug use count
against Father did not form the basis for the order removing Ta.
from Father’s custody and placing the child elsewhere. Instead,
we agree with Father that the sustained jurisdictional allegation
against him did form the basis for the dispositional order that
removed Ta. from Father’s custody, and restricted Father’s
visitation, which continues to impact Father’s rights. The
juvenile court ordered family reunification services for Father,
instead of adopting DCFS’s recommendation to bypass family
services, because Father was making efforts to address his drug
use. The court’s dispositional orders included that Father was to
submit to drug testing, with a full rehabilitation program ordered
if any tests were missed or positive. Accordingly, Father’s appeal
is justiciable.
2. Substantial Evidence Supports the Jurisdictional
Finding Against Father
a. The Applicable Law
Father contends that substantial evidence does not support
the drug abuse allegation against him. In reviewing for
substantial evidence, “We do not pass on the credibility of
witnesses, attempt to resolve conflicts in the evidence or weigh
the evidence. Rather, we draw all reasonable inferences in
support of the findings, view the record favorably to the juvenile
court’s order and affirm the order even if other evidence supports
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a contrary finding.” (In re James R. (2009) 176 Cal.App.4th 129,
135.) However, “ ‘ “ ‘ “inferences that are the result of mere
speculation or conjecture cannot support a finding.” ’ ” ’ ” (In re
J.A. (2020) 47 Cal.App.5th 1036, 1046, italics omitted.)
A child may be declared a dependent of the juvenile court if
“[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
. . . [¶] . . . [t]he failure or inability of the child’s parent . . . to
adequately supervise or protect the child[, or] [¶] . . . [t]he
inability of the parent . . . to provide regular care for the child due
to the parent’s . . . substance abuse.” (§ 300, subd. (b)(1)(A) &
(D).) “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, subd. (a).)
“A jurisdiction finding under section 300, subdivision (b)(1),
requires [DCFS] to prove three elements: (1) the parent’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.) “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.
[Citations.] The court may consider past events in deciding
whether a child presently needs the court’s protection.
[Citations.] A parent’s ‘ “[p]ast conduct may be probative of
current conditions” if there is reason to believe that the conduct
will continue.’ [Citations.] ‘To establish a defined risk of harm at
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the time of the hearing, there “must be some reason beyond mere
speculation to believe the alleged conduct will recur.” ’
[Citation.]” (Id. at pp. 601-602.)
b. Substantial Evidence Supports the
Jurisdictional Finding of Substance Abuse
Father argues there was not substantial evidence he was
currently using marijuana, nor substantial evidence of a nexus
between his alleged substance abuse and a substantial risk of
serious physical harm to the minor child. We disagree with both
contentions.
Substantial evidence supported the inference Father was
currently using marijuana. Father had a history of narcotics use
and distribution, including past convictions for drug possession
and drug transportation. Although Father had completed a 90-
day treatment program, and had some negative tests, he tested
positive for marijuana at a very high level on January 26, 2022,
while in that treatment program—a result that the juvenile court
could reasonably construe as indicating something more
troubling than recreational use, and that Father had not yet
internalized the lessons of the treatment program. Father visited
Ta. at the hospital the following day smelling of marijuana
despite the child being in the neonatal intensive care unit with
respiratory issues. Father admitted to marijuana use related to
managing chronic pain, and his interview with DCFS suggested
he intended to continue using marijuana for that reason. While
we commend Father for seeking treatment and the progress
demonstrated by his successful completion of the Skid Row
Development program and his various negative tests, in
reviewing for substantial evidence we “ ‘ “ ‘ordinarily look[ ] only
at the evidence supporting the successful party, and disregard[ ]
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the contrary showing.’ ” ’ ” (In re I.W. (2009) 180 Cal.App.4th
1517, 1527, disapproved on another ground in Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.)
There was also substantial evidence of a nexus between
Father’s marijuana use and a substantial risk of serious harm to
the minor child. “[D]rug use or substance abuse, without more, is
an insufficient ground to assert jurisdiction in dependency
proceedings under section 300.” (In re L.W. (2019) 32
Cal.App.5th 840, 849.) This, however, is not a matter involving
substance abuse without more. Father tested positive for
marijuana at a very high level while Ta. was in the intensive care
unit, and showed up to the hospital smelling of marijuana. As
the juvenile court noted, that was “kind of like . . . showing up at
the hospital for a newborn strongly reeking of alcohol.” Father’s
statements to DCFS suggested he thought he could schedule his
marijuana use around his parenting duties—that he could
“medicate everyday” despite caring for the child because he could
impose a “cutoff time to take care” of Ta. But parenting an
infant—particularly one with meaningful medical issues—does
not come with a set schedule that permits such “cutoff time[s]” for
intoxication. Construed as it must be in the light most favorable
to the juvenile court’s findings, the evidence shows “the effect of
[Father’s] substance abuse is not now confined to [his] private
moments alone,” and that there was a substantial risk Father’s
marijuana use would “spill[ ] over into areas that will pose a
substantial risk of physical harm to” Ta. (In re L.W., supra, at
p. 850.)
B. Substantial Evidence Supports the Removal Order
Before removing a child from a parent, the juvenile court
must find, by clear and convincing evidence, that the child would
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be at substantial risk of harm if returned home and there are no
reasonable means by which the child can be protected without
removal. (§ 361, subd. (c)(1).) Dispositional orders are reviewed
for substantial evidence, “keeping in mind that the trial court
was required to make its order based on the higher standard of
clear and convincing evidence.” (In re Ashly F. (2014) 225
Cal.App.4th 803, 809.)
Father’s substantial evidence arguments regarding the
removal order repeat the same contentions discussed above
regarding the jurisdictional finding based on substance abuse.
Because we do not find those arguments persuasive, we likewise
reject Father’s contention that substantial evidence does not
support the finding that Ta. would be at substantial risk of harm
if returned to Father’s care, and that there were no reasonable
means to protect Ta. without removal. There was substantial
evidence that Father’s participation in services, while laudable,
had not yet reached a level of efficacy that an infant like Ta.
could be safely maintained in Father’s care.
DISPOSITION
The juvenile court’s jurisdiction and disposition orders are
affirmed.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J. CHANEY, J.
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