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


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  • Filed 6/16/23 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    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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 THREE
    In re M.A., a Person Coming Under                                  B316326
    the Juvenile Court Law.
    Los Angeles County
    LOS ANGELES COUNTY                                                 Super. Ct. No.
    DEPARTMENT OF CHILDREN                                             21CCJP03185
    AND FAMILY SERVICES,
    ORDER MODIFYING OPINION
    Plaintiff and Respondent,                                AND DENYING PETITION
    FOR REHEARING
    v.                                                       [NO CHANGE IN JUDGMENT]
    R.A. et al.,
    Defendants and Appellants.
    THE COURT:
    It is ordered that the opinion filed on May 18, 2023, be modified
    as follows:
    1.     On page 10, the second full paragraph is deleted, and the
    following is inserted in its place:
    “Father concedes his appeal is moot to the extent it challenges
    the jurisdictional findings and removal order. However, he contends his
    challenge to his status as an alleged father is not moot because a paternity
    finding could have practical benefits for M.A. He argues that, although
    it is not clear which state’s laws will apply to any distribution of his assets,
    a declaration from a California court that he is M.A.’s legal parent “should
    assist this child in asserting any rights he has as Father’s heir.” Therefore,
    father 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.”
    2.     The paragraph beginning at the bottom of page 10 and
    continuing to the top of page 11 is deleted, and the following is inserted
    in its place:
    “Contrary to father’s contentions, the fact that a favorable decision
    could have tangential positive benefits for M.A. does not render his 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, father has not shown
    the finding itself would entitle M.A. to any financial benefits or offer the child
    any other concrete relief; that such a finding could be helpful in the future is
    far too speculative. Nor has father shown the juvenile court’s finding that he
    is an alleged parent, if left to stand, would harm M.A. in any way. Tellingly,
    M.A. has not asked us to decide father’s appeal, despite father’s contention
    that it would benefit the child. Accordingly, we decline to exercise our
    inherent discretion to overlook the mootness issue.”
    Appellant M.P.’s petition for rehearing, filed on June 1, 2023, is denied.
    There is no change in the judgment.
    ________________________________________________________________________
    EGERTON, J.                   EDMON, P. J.                    LAVIN, J.
    2
    Filed 5/18/23 In re M.A. CA2/3 (unmodified opinion)
    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 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
    2
    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,
    5
    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.
    6
    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
    7
    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
    8
    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.)
    9
    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
    10
    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
    12
    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 1036
    is 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
    17
    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 1044
    is 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
    18
    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
    19
    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
    20
    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 510
    is 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
    21
    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.
    22
    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.
    23
    

Document Info

Docket Number: B316326M

Filed Date: 6/16/2023

Precedential Status: Non-Precedential

Modified Date: 6/20/2023