In re Journie J. CA2/2 ( 2023 )

Filed 7/19/23 In re Journie J. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re JOURNIE J. et al., B319867
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct.
No. 22CCJP00777A-B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.J.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Tamara Hall, Judge. Affirmed.
Christopher R. Booth, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Deputy County
Counsel, for Plaintiff and Respondent.
******
E.J. (mother) appeals from the jurisdictional order that
resulted in the detention of Journie J. (born November 2009) and
Jourdan J. (born April 2019). Mother argues her arrest for
driving under the influence of alcohol (DUI) is not a sufficient
basis for dependency jurisdiction over her children.
Since substantial evidence supports the finding that
mother’s conduct created a risk of harm to the children, we
affirm.
FACTUAL BACKGROUND
Arrest, investigation, and petition
On December 26, 2022, mother entered a sobriety
checkpoint with Jourdan in the vehicle. Field sobriety tests were
administered, revealing mother’s blood alcohol level to be 0.08
percent on the first test and 0.09 percent on the second test.
Consequently, mother was arrested for driving under the
influence of alcohol, in violation of Vehicle Code section 23152.
An officer from the Los Angeles Police Department
contacted the Los Angeles County Department of Children and
Family Services (DCFS) to advise that Jourdan was in police
custody. A social worker from DCFS arrived and assessed
Jourdan to be happy and in good physical health.
The social worker interviewed Jourdan’s maternal
grandmother, who was also at the police station. According to
maternal grandmother, she had taken care of Jourdan earlier
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that day while mother was at work. When mother picked up
Jourdan around 3:00 p.m., maternal grandmother did not
perceive any signs of drug or alcohol influence. Maternal
grandmother expressed surprise upon learning about mother’s
arrest for DUI, adding mother was a good mother who provided
for her children’s needs. She reported mother occasionally stayed
at her home, but primarily resided at the home of mother’s
godmother, Tommy.
The social worker also spoke with T.J., mother’s adult
daughter. T.J. said mother called to inform T.J. of her arrest,
explaining she drank only “a beer,” but law enforcement claimed
she had consumed “a little too much” to be driving. Mother asked
T.J. to pick up Jourdan at the police station.
T.J. stated she, mother, Jourdan, and Journie resided in
maternal grandmother’s home, but mother also stayed at
Tommy’s home. T.J. asserted mother had never previously been
arrested for a DUI and did not use drugs or drink alcohol. T.J.
reported mother was good to T.J.’s siblings and provided for their
basic needs.
During the investigation, the social worker conducted a
phone interview with the father of Journie and Jourdan,
Ernest J. (father), who explained he and mother separated a few
years earlier and the children resided primarily with mother. He
added he visited the children as often as possible and confirmed
the parents maintained good communication with no formal
custody order in place.
Father expressed surprise regarding mother’s arrest, as she
had not previously been arrested for DUI. He claimed no
knowledge of mother having a history of drug or alcohol abuse.
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Father reported mother as good to the children, who had never
reported any form of abuse from her.
On February 26, 2022, mother consented to the children’s
detention, and the children were placed in father’s care. Father’s
plan was for the children to stay with maternal grandmother.
The following day, Journie reported having been with a
family friend when T.J. picked her up and explained the situation
regarding mother’s arrest. Journie stated it was the first time
mother had been arrested, and neither parent did drugs or drank
alcohol. Journie had never witnessed mother driving while under
the influence and mother took good care of her and Jourdan,
providing for all their needs.
Mother disclosed her diagnosis of bipolar disorder,
depression, and anxiety for which she was taking psychotropic
medications. She had monthly appointments with a psychiatrist
and participated in weekly individual therapy. Mother denied
having a criminal history or using illicit substances.
On the day of her arrest, mother reported taking her
prescribed psychotropic medication around noon and 5:30 p.m.,
along with drinking a beer before driving to the store. She noted
her medication had recently been increased, but she felt “ok” to
drive and did not feel impaired or under the influence of alcohol.
She was stopped at the checkpoint and subsequently arrested
around 6:30 p.m.
Mother denied being an alcoholic, having a drinking
problem, or using illicit drugs. She acknowledged occasionally
drinking a beer but maintained she did not have an alcohol
problem. Mother believed the combination of her psychotropic
medication and beer may have affected her sobriety test. She
expressed remorse for Jourdan being taken into protective
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custody by law enforcement and her willingness to comply with
DCFS and any recommended services. Mother agreed to have
Jourdan and Journie detained and released to father.
On March 1, 2022, a Welfare and Institutions Code section
300, subdivisions (b) (failure to protect) and (j) (abuse of sibling)
petition was filed.1 It was alleged mother had placed Jourdan in a
dangerous situation by operating a vehicle under the influence of
alcohol with the child as a passenger, creating a risk of serious
physical harm, damage, and danger for both Jourdan and
Journie.
Detention hearing
At the March 4, 2022 detention hearing, the juvenile court
ordered the children released to the parents. The court also
ordered mother to abstain from alcohol and marijuana use and
from driving the children until further order of the court. The
court acknowledged the possibility of an interaction between
mother’s medication and alcohol consumption, but expressed
skepticism that consuming only one beer would result in a blood
alcohol level of 0.08 or 0.09 percent. This caused the court to infer
mother may have consumed more alcohol than she had admitted.
Jurisdiction hearing
The jurisdiction hearing was held April 8, 2022. The DCFS
reports containing the information gathered from interviews with
mother, the children, father, and relatives were admitted into
evidence, including the April 5, 2022 jurisdiction/disposition
report wherein a social worker observed Jourdan to be well and
comfortable with mother and maternal grandmother. Journie
1 All further unattributed statutory references are to the
Welfare and Institutions Code.
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stated she had not seen mother drinking alcohol and was unsure
if mother ever consumed alcohol. Journie also affirmed mother
took good care of the children.
Mother provided her account of the day of her arrest,
stating she finished work around 2:00 p.m. and drank one 16-
ounce beer while Jourdan was in her care. Mother claimed she
felt “ok” to drive and had Jourdan in the car seat in the back. At
the sobriety checkpoint, she underwent a breath test. She
acknowledged drinking and driving was a mistake and said the
last time she had a drink was a week earlier. Mother also
admitted to occasional marijuana use, with her last use also
being about a week earlier.
Mother reported receiving mental health treatment for over
20 years, attending weekly therapy sessions. She admitted her
psychiatrist advised her against drinking with her medication.
Mother did not ask if the combination would affect her blood
alcohol level.
Maternal grandmother confirmed she had never seen
mother under the influence and had no concerns about her care of
the children.
Counsel for the children, mother, and father requested
dismissal of the petition due to insufficient evidence of risk of
harm to the children. Nevertheless, the juvenile court sustained
counts b-1 and j-1 in the section 300 petition, finding mother’s
conduct of drinking and driving while taking psychotropic
medications had placed the child of tender age, at risk. The court
found mother’s blood alcohol levels of 0.08 and 0.09 percent were
highly unlikely to result from consuming only one beer, thus
finding mother’s statement on the matter not credible. The court
noted that although family members expressed surprise at
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mother’s alcohol consumption, this was not evidence that mother
did not have an alcohol problem. The court concluded that
mother’s decision to drink and drive while on psychotropic
medication placed the children at ongoing risk of harm.
The court declared the children to be dependents of the
court, granted them home-of-parents status, and ordered the
parents to receive family maintenance services. For mother these
services included weekly random or on-demand drug testing,
participation in a 12-step program, and individual counseling.
Mother was also ordered not to drink and drive with the children
in the car and not to be under the influence of alcohol or any
controlled substances while caring for them.
Mother subsequently filed a timely notice of appeal from
the order of detention of Journie and Jourdan.
DISCUSSION
I. Mother’s failure to address all bases for jurisdiction
The court sustained counts b-1 (failure to protect) and j-1
(abuse of sibling) of the petition. Mother contends there is a lack
of substantial evidence to support the order for count b-1.
However, count j-1 provides an alternative basis for jurisdiction
under subdivision (j) of section 300 that mother did not address
in her opening brief.
Appellate review follows a fundamental rule that the
judgment appealed from is presumed correct, and it is not the
role of the appellate court to construct theories or arguments to
undermine the judgment and defeat the presumption of
correctness. (Benach v. County of Los Angeles (2007) 149
Cal.App.4th 836, 852.) When an appellant fails to raise a point or
asserts it without support with reasoned argument and citations
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to authority, we treat the point as waived. (Ibid.) As long as there
is one unassailable jurisdictional finding, it is immaterial that
another might be inappropriate. (In re Ashley B. (2011) 202
Cal.App.4th 968, 979.)
Here, the court found jurisdiction over the children under
section 300, subdivisions (b) and (j) when it sustained the
petition. Only one subdivision of section 300 is necessary to find
the children dependents of the court. Since mother did not
challenge the court’s jurisdictional findings on count j-1 in her
opening brief, we need not consider her challenge to the court’s
decision to sustain count b-1. While she has waived an appeal
from the alternative basis for jurisdiction arising from count j-1,
which alone is grounds to affirm, we will address her appeal of
jurisdiction based on subdivision (b).
II. Substantial evidence supports the finding of
jurisdiction
A. Applicable law and standard of review
A child may be adjudged a dependent of the court under
section 300, subdivision (b)(1), if the “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.”
The “‘three elements’” for jurisdiction under section 300,
subdivision (b) are “‘(1) neglectful conduct by the parent in one of
the specified forms; (2) causation; and (3) “serious physical harm
or illness” to the minor, or a “substantial risk” of such harm or
illness.’” (In re R.T. (2017) 3 Cal.5th 622, 628, italics omitted.)
“‘The court need not wait until a child is seriously abused or
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injured to assume jurisdiction and take the steps necessary to
protect the child.’” (In re I.J. (2013) 56 Cal.4th 766, 773.)
In reviewing the jurisdictional findings and the disposition,
we look to see if substantial evidence, contradicted or
uncontradicted, supports them. (In re Tania S. (1992) 5
Cal.App.4th 728, 733.) Under this standard, we must view the
evidence in the light most favorable to the juvenile court’s order,
drawing every reasonable inference in support of the judgment.
(In re Marina S. (2005) 132 Cal.App.4th 158, 165.) We do not
reweigh the evidence. (Ibid.)
B. Evidence of substantial risk of harm to children
established jurisdiction
Here, the question is whether mother’s arrest for DUI with
her young child in the car is sufficient to establish jurisdiction
over the children in the juvenile court.
At the April 8, 2022 hearing, the juvenile court found the
following had been established: mother drank alcohol with the
knowledge she would be driving, mother drove a vehicle while
under the influence of alcohol with the child as a passenger,
mother had taken psychotropic medications that mother was
aware was contraindicated with the consumption of alcohol.
These facts established mother’s neglectful conduct of
driving while under the influence of alcohol and psychotropic
medication. This neglectful conduct placed the child at a
substantial risk of suffering serious physical harm due to
mother’s impaired ability to properly operate a motor vehicle.
Consequently, substantial evidence supported the conclusion the
child was at risk of suffering physical harm due to mother’s
failure to protect the child during transportation.
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Moreover, the exercise of jurisdiction under section 300,
subdivision (b), is proper when a child is “‘of such tender years
that the absence of adequate supervision and care poses an
inherent risk to [his or her] health and safety.’” (In re Kadence P.
(2015) 241 Cal.App.4th 1376, 1384.) The child in the vehicle was
under three years old, thus meeting the criteria of being of tender
years. The trial court noted that fact when it made its findings.
Due to the child’s tender years and inability to protect himself
from mother’s absence of care while transporting him, mother’s
neglectful conduct posed an inherent risk to his physical health
and safety.
Finally, mother has denied having a drinking problem. This
denial caused the court concern about mother’s overall judgment
regarding alcohol use. Additionally, the juvenile court noted
mother is aware she should not drink alcohol after taking her
prescribed psychotropic medication. Thus mother’s denial of a
drinking problem further supports the court’s conclusion of a risk
to the children’s safety, necessitating supervision.
DISPOSITION
The jurisdictional order is affirmed.
CHAVEZ, J.
We concur:
ASHMANN-GERST, Acting P. J. HOFFSTADT, J.
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