In re Kasey D. CA2/7 ( 2023 )

Filed 7/26/23 In re Kasey D. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re KASEY D., a Person B321963
Coming Under the Juvenile Court (Los Angeles County Super.
Law. Ct. No. 22CCJP01534)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JANYCE E.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Jean M. Nelson, 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 Jacklyn K. Louie, Principal
Deputy County Counsel, for Plaintiff and Respondent.
__________________________
Janyce E. (Mother) appeals from the juvenile court’s
jurisdiction findings and disposition order declaring two-month-
old Kasey D. a dependent of the court and removing her from
Mother’s physical custody. The juvenile court sustained a
petition under Welfare and Institutions Code former section 300,
subdivision (b)(1),1 alleging Kasey had a positive toxicology
1 Welfare and Institutions Code section 300,
subdivision (b)(1), formerly provided, in relevant part, that a
child comes within the jurisdiction 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 the failure
or inability of the child’s parent or guardian to adequately
supervise or protect the child, . . . or by the inability of the parent
or guardian to provide regular care for the child due to the
parent’s or guardian’s mental illness, developmental disability, or
substance abuse.” Effective January 1, 2023, Senate Bill
No. 1085 (2021-2022 Reg. Sess.) (Stats. 2022, ch. 832, § 1)
amended section 300 by rewriting subdivision (b)(1) to enumerate
the existing bases for dependency jurisdiction in separate
subparagraphs (b)(1)(A) through (D). The legislation also added
section 300, subdivision (b)(2), which now provides, “A child shall
not be found to be a person described by this subdivision solely
due to any of the following: [¶] (A) Homelessness or the lack of an
emergency shelter for the family. [¶] (B) The failure of the child’s
parent or alleged parent to seek court orders for custody of the
2
screen for marijuana at birth, and Mother had a history of
substance abuse and was a current abuser of marijuana that
rendered her incapable of providing regular care and supervision
of Kasey and placed Kasey at risk of serious physical harm.
Mother contends there was insufficient evidence of substance
abuse and there was no nexus between Mother’s marijuana use
and a present risk of harm to Kasey. Mother also contends the
juvenile court abused its discretion in restricting Mother to
monitored visitation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Referral and Investigation
Kasey was born in April 2022 at Providence St. Joseph
Medical Center in Burbank. She was born prematurely at 34 to
35 weeks and was placed in the neonatal intensive care unit. The
same day Kasey was born, the Los Angeles County Department
of Children and Family Services (Department) received a referral
alleging Mother tested positive for marijuana and admitted to
using psychedelic mushrooms, and Kasey also tested positive for
marijuana at birth. Mother, who was then 22 years old, had not
received prenatal care, did not have any supplies for a baby or a
support system to care for a newborn, and would not have
assistance from Kasey’s father (who was not aware of Mother’s
child. [¶] (C) Indigence or other conditions of financial difficulty,
including, but not limited to, poverty, the inability to provide or
obtain clothing, home or property repair, or childcare.”
Further statutory references are to the Welfare and
Institutions Code.
3
pregnancy). The hospital medical staff expressed a concern about
Mother’s ability to care for Kasey due to Mother’s lack of
preparation, in utero drug exposure, and lack of a place for
Mother and Kasey to live upon discharge.
The next day Evelyn Fuenzalida, a hospital social worker,
confirmed that Mother and Kasey had positive urine tests for
marijuana, but the testing only showed that Mother and Kasey
tested positive, not the levels of marijuana metabolites detected.
According to Fuenzalida, Mother showed love toward Kasey and
appeared to be a “nice person,” but Mother was unsure about
parenting a baby and concerned about her lack of financial
stability. As a result, she was considering placing Kasey up for
adoption. Neonatal care nurse Tony Ervolina stated Kasey was
eating and sleeping well and had no withdrawal symptoms.
The Department social worker interviewed Mother in her
hospital room on the day of her discharge. Mother stated Kasey’s
father had the first name “‘Antonio,’” but she did not know his
last name or have his contact information. He was living in
Florida and worked at the same company where Mother used to
work. Mother felt Antonio was “‘not ready to be a father,’” and
she had not told him she was pregnant. Mother explained she
had been living on her own since she was 17 years old and moved
from Florida to California in January 2022. Mother had no
family or friends in California to help her with Kasey. She had
been living with two roommates, but she had to move out because
the lease had expired. Mother first became aware she was
pregnant when she was five months pregnant and started to
show. She did not receive prenatal care and had no health
insurance or a primary care doctor. At the time of the interview,
Mother was working the graveyard shift in a warehouse.
4
Mother stated she frequently used marijuana for her
anxiety and had last used a “‘small bowl’” the prior Saturday (the
day before Kasey was born). Mother knew “‘not to use’”
marijuana while pregnant, but she nonetheless used it to calm
her anxiety. Mother told the social worker she was physically,
emotionally, and verbally abused as a child by an adoptive
parent, and had early in her life been diagnosed with anxiety.
With respect to the use of psychedelic mushrooms, Mother
stated a friend had given her a chocolate bar infused with
mushrooms sometime the prior week, but Mother was unaware it
contained psychedelic mushrooms. Mother had not previously
ingested psychedelic mushrooms. Mother denied having a
criminal record and said she did not consume alcohol.2 Mother
refused to take an on-demand drug test upon discharge from the
hospital, stating she would be too busy moving her belongings out
of her former residence. Kasey was due to be discharged in the
next day or two, and Mother told the social worker she would
decide by then whether she would care for Kasey or consent to a
safe surrender of Kasey to the Department.
The next day Mother told the social worker that she had
obtained a second job for the daytime, and she had temporary
access to transportation. Mother stated as to Kasey,
“‘[U]nfortunately, I won’t be able to keep [Kasey][;] I won’t have
the time to be able to take care of her. I really don’t want to put
her through me struggling . . . .’” Mother told the social worker
that evening that she had decided to place Kasey “temporarily”
2 In a subsequent interview, Mother also denied use of any
substance other than marijuana and her one-time use of
mushrooms.
5
with the Department while she stabilized her life and financial
situation. Mother handwrote and signed an affidavit
surrendering Kasey to the Department. Mother advised the
social worker she would visit Kasey at the hospital the following
day before Kasey was discharged.
Fuenzalida reported the next day that Mother had been
breastfeeding and was bonding with the baby. The Department
social worker contacted Mother to clarify the plan for Kasey’s
care. Mother stated, “‘The best option is to have time to get
myself together and unravel the current situation,’” but she
wanted the arrangement to be temporary. The social worker
informed Mother a court case would begin and recommended
Mother comply with the court’s orders to reunify with Kasey.
Further, Mother could contact Kasey’s caregiver to arrange for
visits with Kasey. The social worker asked Mother to provide
contact information for relatives or friends to serve as possible
placements, but Mother said she did not have any contact
information to provide. A housing navigator offered Mother a
place to stay in a shelter for a week while the Department looked
into additional housing resources, but Mother declined the
assistance.
B. The Dependency Petition and Detention Hearing
On April 21, 2022 the Department filed a dependency
petition alleging pursuant to section 300, former
subdivision (b)(1), that Kasey was born suffering from a
detrimental condition, having tested positive for marijuana at
birth, which resulted from Mother’s conduct that placed Kasey at
risk of physical harm. The petition further alleged Mother had a
history of substance abuse, including marijuana, and was a
6
current abuser of marijuana, which rendered Mother incapable of
providing Kasey with regular care and supervision. The petition
cited to Mother’s use of marijuana during her pregnancy and her
positive drug test at the time of Kasey’s birth. Further, “[t]he
child is of such a young age as to require constant care and
supervision,” and Mother’s substance abuse interfered with her
ability to provide regular care and supervision and placed Kasey
at risk of serious physical harm.
At the April 26 detention hearing, Mother’s attorney stated
Mother was unhoused and, as to detention, “Mother is unsure if
she is able to or even wants to keep Kasey, so at this time I will
submit on detention.” But she clarified that Mother wanted to
reunify with Kasey and was willing to participate in services and
drug testing. The attorney added, “[Mother] does use marijuana
medicinally and she understands that she may need to decrease
her levels.” The court detained Kasey3 and granted Mother
monitored visits two to three times per week for two to three
hours each visit, with the Department having discretion to
liberalize visitation. The court cautioned if Mother appeared for
a visit under the influence of drugs or alcohol, the visit would be
canceled. The court ordered the Department to provide Mother
with a referral for drug testing. The court told Mother as to drug
testing, “Please go ahead and test even though you will come up
positive for marijuana. I know that marijuana is a legal
substance like alcohol is, but what I look for is how high are your
levels, and if they are high[,] are you able to bring those levels
3 The juvenile court found Antonio was Kasey’s alleged
father and detained Kasey from him because he had not been
fully identified and had not appeared.
7
down . . . .” Mother responded, “Yes.” The court also ordered
Mother not to breastfeed until she provided five consecutive clean
drug tests. The court ordered the Department to provide housing
and transportation assistance to Mother.
C. The Jurisdiction and Disposition Report
The jurisdiction and disposition report filed on May 20,
2022 stated Kasey was living with caregiver Kelsey A. On May
13 the dependency investigator interviewed Mother about the
drug abuse allegations in the petition. Mother stated she began
using marijuana when she was 18 years old to “‘self-medicate’” to
manage her anxiety. When Mother realized she was pregnant
during the fifth month of pregnancy, she initially stopped using
marijuana, then reduced her use from “‘throughout the day’” to
“‘probably use[d] 2 hours during the day.’” Mother continued to
use marijuana because it was a stressful time as a result of her
finances and the prospect of having a baby. Mother stated
marijuana use “‘does not affect my everyday process [and] I don’t
use while I work[;] I use after I’m off. When I [have] used I’m [by]
myself and it does not interfere with my ability to care for my
daughter.” Mother did not think Kasey’s testing positive for
marijuana at birth “‘would be considered abuse.’”
Mother had two part-time jobs and was currently living out
of a small truck. Mother acknowledged she was currently unable
to provide for Kasey’s basic needs, but she hoped in the future to
move back to Florida with friends who were aware of her
situation. Mother stated her childhood environment was
traumatic. She was placed in foster care as a young child, then
adopted by her aunt, after her mother’s partner killed Mother’s
younger sibling.
8
Mother was referred by the Department to drug testing on
May 4, 2022 and failed to show for scheduled tests on May 5 and
11. As to the latter date, Mother explained she was confused
about the testing instructions. On May 12 Mother tested positive
for marijuana metabolites at 416 ng/mL. Mother tested negative
for all other drugs. According to the last minute information for
the court, on May 20 Mother tested positive for marijuana
metabolites at 85 ng/mL, and she failed to show for a test on May
24, 2022. On June 3 Mother tested positive for marijuana at
95 ng/mL.
Kasey was doing well and appeared to be meeting
developmental milestones. She was seen weekly by a physician,
and there were no concerns with her growth and development.
Kasey’s birth records stated there were “‘[n]o complications at
birth except both mother and infant toxicology positive for
[c]annabinoids.”
On April 29 Kasey’s caregiver and Mother agreed to
conduct visits in person on Sundays at a park, with two virtual
visits on weekdays. However, Mother never participated in
weekday virtual visits with Kasey. Mother was unable to attend
an in-person visit on Sunday, May 8, and instead had a five-
minute virtual visit that day. On May 15 Mother visited with
Kasey in the park. The caregiver reported that Mother appeared
to be detached and needed support and training in how to care for
Kasey, as shown by Mother not burping Kasey and needing to be
told when Kasey needed a diaper change. Mother’s May 22 visit
was reduced to one hour because Mother failed to confirm the
visit 24 hours in advance, as the parties had agreed, and the
caregiver was unavailable for the usual two-hour visits. The
May 29 visit was canceled because Kasey was sick. The June 5
9
visit did not take place because Mother failed to confirm with the
caregiver in advance.
As of the June 14 last minute information for the court,
Mother had not enrolled in any services. Mother stated she had
not found a parenting program that offered virtual sessions, and
she needed flexibility because she was working two jobs and had
no transportation.
D. The Jurisdiction and Disposition Hearing
At the June 14, 2022 jurisdiction and disposition hearing,
the juvenile court sustained the petition. The court explained,
“Mother, at some point, did know she was pregnant and thought
it was okay to continue using marijuana. Marijuana is a legal
substance, but it appears Mother is dependent on it; that she
. . . still needs to use it daily and that she uses it for her
emotional needs and that she uses another drug, [psychedelic]
mushrooms, which [is] also a hazard. Mother is not recognizing
how fragile an infant is or how fragile the infant was during
gestation and that the use of a substance like marijuana or
mushrooms can affect her child. And it requires a real change
. . . . [S]he needs to be able to show that she isn’t using it every
day and that she can make an arrangement where her use and
her being under the influence will not [occur] when she will have
the child in her care.” The court found Mother failed to “show an
ability to stop using [marijuana] on a daily basis.” And, although
Mother’s “levels are low,” Mother’s “daily use and the lack of
Mother. . . being able to see how this harms her child and her
ability to parent” supported jurisdiction. The court found
additional factors supporting jurisdiction included that Mother
did not have a “stable life” with support, and she was “lacking
10
certain basic skills and things in her life that her newborn will
need.”4
As to disposition, the juvenile court relied on the
Department’s reports and the court’s jurisdiction findings to
declare Kasey a dependent of the court. With respect to removal,
minor’s counsel stated Kasey’s placement with Kelsey was
working well and the caregiver was sympathetic to Mother’s
situation and assisted Mother in maintaining contact with Kasey.
Mother’s attorney stated, “Mother would like release; however,
she does not have a place for the child to be released to. But per
Mother’s request, I’m offering a possibility that was proposed by
Mother, although she understands this is unlikely, but she is
asking that the Department . . . assess Mother living with the
caregiver with the child. I know that nobody has approached the
caregiver about this either, but per my client’s request, I’m
asking the court to assess this possibility.”
The juvenile court stated Kelsey would not be released to
Mother “until Mother can show she can avoid using marijuana on
a daily basis, that is the level of control I need to see, and that
she is able to make a plan for her child to have a safe home, and
Mother demonstrate[s] that she understands the basics of
4 As discussed, effective January 1, 2023, section 300,
subdivision (b)(2)(C), now provides that jurisdiction cannot be
based on the parent’s indigence and inability to provide a home
for the child. Although Mother’s inability to provide financial
support and shelter for Kasey would not be a sufficient ground for
jurisdiction under current law, Mother’s continued use and abuse
of marijuana, and her lack of insight into the effect of her
substance abuse on her ability to care for Kasey, were sufficient
grounds.
11
parenting.” (RT 16:21-26)~ The court concluded returning Kasey
to the home of Mother was “contrary to the baby’s welfare.” The
court found, “There is clear and convincing evidence that there is
or would be a substantial danger to the baby’s physical health,
safety, protection, or wellbeing if returned home of Mother, and
there are no reasonable means by which the baby’s physical
health can be protected without removing from Mother.” The
court added, “[M]y removal findings are based on clear and
convincing evidence that Mother is not yet able to control her use
of marijuana to the point where she . . . will be sober while
around the baby.”5
With respect to Mother’s case plan, the juvenile court asked
Mother’s attorney whether she had any objection to the
Department’s proposal. The attorney replied, “I think it looks
okay to me as well.” Consistent with the Department’s proposal,6
the court ordered Mother to submit to random or on-demand drug
testing on a weekly basis; if Mother tested positive for higher
levels of marijuana or another substance, or missed any tests
without an excuse, the Department was ordered to bring this to
the attention of the court, which would then consider ordering
Mother to participate in a full drug treatment program. The
court also ordered Mother to complete a developmentally
5 The juvenile court also ordered Kasey removed from
Antonio, after the Department filed a declaration of diligence
stating it had been unable to identify or locate him.
6 The juvenile court rejected the Department’s
recommendation Mother undergo a psychiatric evaluation, but it
agreed to order Mother to follow her therapist’s recommendation
if the therapist deemed a psychiatric assessment necessary.
12
appropriate parenting program; mental health counseling; and
individual counseling to address case issues, substance abuse and
its effect on children, childhood trauma, mental health, coping
strategies, and child safety. The court granted Mother monitored
visits two to three times per week for two to three hours each
visit, with the Department having discretion to liberalize
visitation. The court ordered the Department to provide housing
and transportation assistance for Mother, and for Kasey to be
assessed at a regional center.
Mother timely appealed.
DISCUSSION
A. Substantial Evidence Supports the Jurisdiction Findings
Under Section 300, Former Subdivision (b)(1)
1. Governing law and standard of review
The juvenile court has jurisdiction over a child if the
Department establishes by a preponderance of the evidence that
the allegations made pursuant to section 300 are true. (§ 355,
subd. (a); In re I.J. (2013) 56 Cal.4th 766, 773.) As relevant here,
section 300, former subdivision (b)(1), authorizes the juvenile
court to assume jurisdiction when “[t]he child has suffered, or
there is a substantial risk that the child will suffer, serious
physical harm or illness, as a result of the failure or inability of
the child’s parent . . . to adequately supervise or protect the child
. . . or by the inability of the parent . . . to provide regular care for
the child due to the parent’s . . . substance abuse.” “The provision
of a home environment free from the negative effects of substance
abuse is a necessary condition for the safety, protection and
13
physical and emotional well-being of the child.” (§ 300.2,
subd. (a).)
“A jurisdiction finding under section 300, subdivision (b)(1),
requires the Department to prove three elements: (1) the parent’s
or guardian’s neglectful conduct or failure or inability to protect
the child; (2) causation; and (3) serious physical harm or illness
or a substantial risk of serious physical harm or illness.” (In re
Cole L. (2021) 70 Cal.App.5th 591, 601 (Cole. L.); accord, In re
L.W. (2019) 32 Cal.App.5th 840, 848; see In re R.T. (2017)
3 Cal.5th 622, 624 [“section 300(b)(1) authorizes dependency
jurisdiction without a finding that a parent is at fault or
blameworthy for her failure or inability to supervise or protect
her child”].) Although section 300 requires the child be at risk of
serious harm at the time of the jurisdiction hearing, “the court
need not wait until a child is seriously abused or injured to
assume jurisdiction and take steps necessary to protect the
child.” (Cole L., at pp. 601-602; accord, In re L.O. (2021)
67 Cal.App.5th 227, 238 [“‘Although there must be a present risk
of harm to the minor, the juvenile court may consider past events
to determine whether the child is presently in need of juvenile
court protection.’”].) If there is reason to believe the conduct will
continue, a parent’s past conduct may be probative of current
conditions. (Cole L., at p. 602; accord, In re J.A. (2020)
47 Cal.App.5th 1036, 1048.)
We review the juvenile court’s jurisdiction findings for
substantial evidence in light of the record as a whole. (In re I.C.
(2018) 4 Cal.5th 869, 892; In re R.T., supra, 3 Cal.5th at p. 633
[“‘In reviewing the jurisdictional findings and disposition, we look
to see if substantial evidence, contradicted or uncontradicted,
supports them.’”].) Substantial evidence is “evidence which is
14
reasonable, credible, and of solid value.” (In re I.C., at p. 892;
accord, Cole L., supra, 70 Cal.App.5th at p. 602.) “‘[W]e draw all
reasonable inferences from the evidence to support the findings
and orders of the dependency court; we review the record in the
light most favorable to the court’s determinations; and we note
that issues of fact and credibility are the province of the trial
court.’” (In re R.T., at p. 633; accord, In re I.J., supra, 56 Cal.4th
at p. 773; Cole L., at p. 602 [“while substantial evidence may
consist of inferences, any inferences must rest on the evidence;
inferences based on speculation or conjecture cannot support a
finding”].) The appellant has the burden to show there is not
substantial evidence to support the juvenile court’s findings or
order. (In re E.E. (2020) 49 Cal.App.5th 195, 206; In re D.B.
(2018) 26 Cal.App.5th 320, 328-329.)
2. Substantial evidence supports the juvenile court’s
jurisdiction findings
Mother contends that although there was evidence she
used marijuana during and after her pregnancy, there was
insufficient evidence of substance abuse, which is necessary to
support dependency jurisdiction. Mother is correct that a
parent’s use of marijuana, without more, is insufficient to support
jurisdiction under section 300, subdivision (b). (In re J.A., supra,
47 Cal.App.5th at p. 1046 [“[t]he law is clear that jurisdiction
must be based on substance abuse; mere substance use is not
sufficient for jurisdiction” (Boldface omitted.)]; In re Destiny S.
(2012) 210 Cal.App.4th 999, 1003 [“[i]t is undisputed that a
parent’s use of marijuana ‘without more,’ does not bring a minor
within the jurisdiction of the dependency court” (Boldface
omitted)].) In this case, there is more. Substantial evidence
15
supported the juvenile court’s finding Mother’s marijuana use
was substance abuse.
Mother principally relies on In re Drake M. (2012)
211 Cal.App.4th 754, 766 (Drake M.), disapproved on another
ground in In re D.P. (2023) 14 Cal.5th 266, 282, for its definition
of substance abuse. In Drake M., Division Three of this district
held that “a finding of substance abuse for purposes of
section 300, subdivision (b), must be based on evidence sufficient
to (1) show that the parent or guardian at issue had been
diagnosed as having a current substance abuse problem by a
medical professional or (2) establish that the parent or guardian
at issue has a current substance abuse problem as defined in the
DSM–IV–TR.”7 (Drake M., at p. 766). But as we explained in In
re Christopher R. (2014) 225 Cal.App.4th 1210, 1218 (Christopher
R.), although the Drake M. formulation provides “a generally
useful and workable definition of substance abuse for purposes of
section 300, subdivision (b),” it is not “a comprehensive, exclusive
definition mandated by either the Legislature or the Supreme
Court.” We rejected the mother’s argument that “only someone
who has been diagnosed by a medical professional or who falls
within one of the specific DSM-IV-TR categories can be found to
be a current substance abuser.” (Ibid.) We also recognized that
in 2013, after Drake M. was decided, the DSM-IV-TR’s definition
of “substance abuse” was replaced in the fifth edition of the
Diagnostic and Statistical Manual of Mental Disorders (DSM-5)
7 DSM-IV-TR refers to the American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental
Disorders (4th rev. ed. 2000). (Drake M., supra, 211 Cal.App.4th
at p. 765.)
16
by a more broadly defined classification of “‘substance use
disorders,’” which combines substance abuse and substance
dependence. (Christopher R., at p. 1218, fn 6.) We stated, “DSM-
5 identifies 11 relevant criteria, including cravings and urges to
use the substance; spending a lot of time getting, using, or
recovering from use of the substance; giving up important social,
occupational or recreational activities because of substance use;
and not managing to do what one should at work, home or school
because of substance use. The presence of two or three of the
11 specified criteria indicates a mild substance use disorder; four
or five indicate a moderate substance use disorder; and six or
more a severe substance use disorder.” (Ibid.)
Here, Mother admitted to using marijuana regularly for
four years (her entire adult life) to manage her anxiety. Even
after she learned she was pregnant, she only reduced her usage
from “‘throughout the day’” to two hours per day. She knew at
the time she should not use marijuana while pregnant, and she
had not obtained a prescription or medical advice to support her
use. Yet she continued to use marijuana to “‘self-medicate’” and
cope with the additional stress of her finances and having a baby.
On the Saturday before giving birth, Mother admitted to using a
“small bowl” of marijuana, and both Mother and Kasey tested
positive for marijuana at birth. Moreover, Mother continued to
use marijuana after Kasey’s birth even though the social worker,
and later the juvenile court at the detention hearing, advised
Mother that stopping (or consistently reducing her use) was
critical to creating a safe home for Kasey, and Mother could not
visit Kasey while under the influence. Further, Mother was
advised she could not resume nursing Kasey until she had five
consecutive clean tests.
17
Following the detention hearing, Mother tested positive
three times (and never tested negative). Although Mother’s
levels dropped from 416 ng/mL on May 12, 2022 to 85 ng/mL on
May 20, and 95 ng/mL on June 3, she missed tests on May 5,
May 11, and May 24. Mother’s missed tests support a reasonable
inference she would have tested positive at higher levels. (See In
re Natalie A. (2015) 243 Cal.App.4th 178, 186 [missed drug tests
supported “reasonable inference . . . that father’s marijuana use
was more frequent than the one admitted instance”]; Christopher
R., supra, 225 Cal.App.4th at p. 1217 [missed drug test “properly
considered the equivalent of a positive test result”].) During this
period, Mother was visiting with Kasey, including a visit on
May 15, just three days after Mother tested at a high level.
Mother’s lack of insight into the effects and consequences of her
continuing marijuana use, her reliance on marijuana, and her
apparent inability to curtail her use reasonably supported a
finding of substance abuse.
Mother relies on In re J.A., supra, 47 Cal.App.5th at
pages 1046 through 1047, in which Division Five of this district
held that a mother’s use of marijuana edibles while pregnant,
resulting in positive tests for both the mother and baby at birth,
was insufficient evidence of substance abuse to support
jurisdiction under section 300, subdivision (b). But in In re J.A.,
there was no evidence the mother continued to use marijuana
after testing positive at the time she gave birth: “The evidence of
mother’s substance use is, at most, that she used edible
marijuana while pregnant, to address her pregnancy symptoms,
after having researched that it was a relatively safe alternative.
She claims that she was never high or under the influence when
she used it. She claims that she easily stopped using as soon as
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she was told to do so; her drug tests support this.” (In re J.A., at
p. 1047.) Unlike the mother in In re J.A., Mother continued to
use marijuana for two hours a day, even smoking a small bowl
days before delivery, and she did not ever test clean for
marijuana or demonstrate her ability to function without it.
Mother also contends there was insufficient evidence to
establish her marijuana use created a present risk at the time of
the jurisdiction hearing of substantial harm to Kasey, who was
healthy and meeting developmental milestones. However, with
respect to a child of “tender years,” “‘the 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
harm.’” (Christopher R., supra, 225 Cal.App.4th at p. 1219;
accord, In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384.)
Kasey was only two months old at the time of the jurisdiction
hearing, and the juvenile court’s finding Mother was a current
abuser of marijuana created a presumption unrebutted by
Mother that she would be unable to provide appropriate care for
Kasey. (See Christopher R., at pp. 1219-1220 [father’s “regular,
ongoing use of marijuana” demonstrated “an inability to provide
regular care” to his three-month-old daughter].) Although Kasey
did not show signs she was harmed by Mother’s prenatal use of
marijuana, the court need not wait until Kasey was seriously
harmed by Mother’s continued use of marijuana to assume
jurisdiction to protect her. (Cole L., supra, 70 Cal.App.5th at
p. 602.)
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B. Substantial Evidence Supports the Removal Order
1. Governing law and standard of review
“‘At the dispositional hearing, a dependent child may not be
taken from the physical custody of the parent under section 361
unless the court finds there is clear and convincing evidence
there is or would be a substantial danger to the child’s physical
health, safety, protection, or physical or emotional well-being if
returned home, and that there are no reasonable means to
protect the child’s physical health without removing the child.’”
(In re D.P. (2020) 44 Cal.App.5th 1058, 1065; accord, In re G.C.
(2020) 48 Cal.App.5th 257, 264-265; see § 361, subd. (c)(1).) “In
determining whether a child may be safely maintained in the
parent’s physical custody, the juvenile court may consider the
parent’s past conduct and current circumstances, and the
parent’s response to the conditions that gave rise to juvenile court
intervention.” (In re D.B., supra, 26 Cal.App.5th at p. 332;
accord, In re I.R. (2021) 61 Cal.App.5th 510, 520.) “A removal
order is proper if based on proof of parental inability to provide
proper care for the child and proof of a potential detriment to the
child if he or she remains with the parent. [Citation.] ‘The
parent need not be dangerous and the minor need not have been
actually harmed before removal is appropriate. The focus of the
statute is on averting harm to the child.’” (In re N.M. (2011)
197 Cal.App.4th 159, 169-170; accord, In re V.L. (2020)
54 Cal.App.5th 147, 154.)
“When reviewing a finding that a fact has been 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. In conducting its review,
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the court must view the record in the light most favorable to the
prevailing party below and give appropriate 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, 1011-1012; see In re V.L., supra, 54 Cal.App.5th at
p. 155 [“O.B. is controlling in dependency cases.”].) We review
the entire record to determine whether the removal order is
supported by substantial evidence. (In re I.R., supra,
61 Cal.App.5th at p. 520; In re V.L., at p. 155.)
2. Substantial evidence supports the juvenile court’s
removal order
Mother contends there was insufficient evidence to support
Kasey’s removal from her physical custody and there was at least
one reasonable alternative to removal.
Contrary to Mother’s contention, the same evidence that
supported the jurisdiction findings provides substantial evidence
to support the juvenile court’s finding of clear and convincing
evidence that Mother was unable to control her marijuana use to
safely care for Kasey. Mother voluntarily surrendered Kasey to
the Department out of a concern she could not care for her; she
continued to use marijuana after Kasey’s birth; and she declined
the Department’s offers of services and support. Further, she
had no family or friends who could support her in caring for
Kasey, she was inconsistent in confirming and attending visits
with Kasey (resulting in only two in-person visits with her, one of
which was shortened to one hour), and her behavior during the
visits did not demonstrate a present ability to care for Kasey.
Although the Department’s reports indicated Mother was well-
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intentioned with a sincere desire to have a relationship with
Kasey, the focus of section 361 is on the parent’s ability “to
provide proper care for the child” and the “potential detriment to
the child” from living with the parent. (In re N.M., supra,
197 Cal.App.4th at p. 169.)
Mother contends there were less drastic alternatives to
removal, but she suggested only one alternative: the possibility of
Mother moving into the home of the caregiver. And as Mother’s
counsel admitted at the jurisdiction hearing, “nobody has
approached the caregiver about this,” and Mother knew it was an
“unlikely” prospect. Without any evidence the caregiver was
willing and able to have Mother live in her home, Mother did not
present a “reasonable” alternative to removal at the disposition
hearing. (In re D.P., supra, 44 Cal.App.5th at p. 1068.) As
Mother’s attorney acknowledged at the disposition hearing,
Mother wanted to have Kasey released to her, but she did “not
have a place for the child to be released to.”
C. Mother Forfeited Her Challenge to the Requirement She
Have Only Monitored Visitation
Mother contends the juvenile court abused its discretion in
mandating that her visitation be monitored. But Mother did not
object to the visitation order at the disposition hearing, which
was based on Department’s proposed case plan. When the
juvenile court asked Mother’s attorney whether she had any
objection to the Department’s proposal, the attorney responded,
“I think it looks okay to me as well.” Under these circumstances,
Mother forfeited her objection to monitored visitation. (See In re
S.B. (2004) 32 Cal.4th 1287, 1293 [“a reviewing court ordinarily
will not consider a challenge to a ruling if an objection could have
22
been but was not made in the trial court”]; In re E.A. (2012) 209
Cal.App.4th 787, 791 [father forfeited his contention the juvenile
court erred in denying visitation while he was incarcerated by
failing to raise it in the juvenile court]; In re Anthony P. (1995)
39 Cal.App.4th 635, 641 [mother “waived her right to assert error
as to sibling visitation on appeal by not properly raising the issue
below”].)
Even if Mother’s contention was not forfeited, the juvenile
court did not abuse its discretion. Section 362.1,
subdivision (a)(1)(A), provides, “‘Visitation shall be as frequent as
possible, consistent with the well-being of the child.’” (See In re
D.P., supra, 44 Cal.App.5th at p. 1070.) But “[n]o visitation order
shall jeopardize the safety of the child.” (§ 362.1, subd. (a)(1)(B);
see In re T.M. (2016) 4 Cal.App.5th 1214, 1218.) “The power to
regulate visits between dependent children and their parents
rests with the juvenile court and its visitation orders will not be
disturbed on appeal absent an abuse of discretion.” (In re D.P., at
p. 1070.)
Mother continued to test positive for marijuana during the
period she was visiting with Kasey, including positive tests
within a few days before and after her May 15, 2022 visit.
Mother was unsure how to care for Kasey during the visits,
including needing the caretaker’s guidance with respect to
burping and changing Kasey’s diaper. Mother’s attorneys have
emphasized Mother’s youth, inexperience, and lack of support
and resources, all of which are true, but these factors, if anything,
militate in favor of monitored visits to protect Kasey. The
juvenile court was therefore well within its discretion in
requiring a monitor be present during Mother’s visits.
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DISPOSITION
The juvenile court’s jurisdiction findings and disposition
order are affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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