In re Natalya M. CA2/8 ( 2023 )

Filed 6/12/23 In re Natalya M. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re NATALYA M., a Person B318436
Coming Under the Juvenile Court
Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 21CCJP05732A
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JUAN M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Marguerite D. Downing, Judge. Affirmed.
Elizabeth C. Alexander, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Sarah Vesecky, Senior Deputy
County Counsel, for Plaintiff and Respondent.
**********
Father, Juan M., appeals orders of the juvenile court
(1) exercising jurisdiction over his daughter, Natalya M.,
pursuant to Welfare and Institutions Code1 section 300, and
(2) removing Natalya M. from his custody pursuant to
section 361. We affirm.
BACKGROUND
Natalya M. was born to father and mother, Sasha C., in
December 2021. Though they have been, and remain, in a
long-term relationship, mother and father do not live together.
Father has 16-year-old twins from a prior relationship. Their
mother lives out of state, and father lives with and raises his
older children alone.
At the time of her birth, both Natalya and mother tested
positive for methamphetamine. Natalya exhibited withdrawal
symptoms. The hospital referred the matter to the Los Angeles
County Department of Children and Family Services
(Department).
The Department began its investigation two days after
Natalya’s birth. It first interviewed the hospital’s social worker,
who had discussed mother’s positive toxicology screen with her.
According to the hospital social worker, mother admitted to a
long history of methamphetamine use, including using
methamphetamine two to three times per week during her
pregnancy. She reported most recently using four days prior to
Natalya’s birth. She also reported a history of depression and
anxiety. Mother further reported father uses methamphetamine
and abuses alcohol. She said he is verbally abusive towards her,
which triggers her methamphetamine use. Father’s verbal abuse
1 Undesignated statutory references are to the Welfare and
Institutions Code.
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was corroborated by a nurse who witnessed it firsthand. The
hospital social worker described mother as “tender with the child
and . . . open and honest.”
The Department next interviewed the nurse who was
caring for Natalya and initially reported mother’s and Natalya’s
positive toxicology screens. She shared details about Natalya’s
withdrawal symptoms and repeated what the social worker
reported about mother’s methamphetamine use. The nurse also
shared her observations about father. She said that on the day of
Natalya’s birth he “appeared to be ‘high.’ ”
The Department next interviewed maternal grandmother.
She confirmed mother had started using methamphetamine eight
years prior, took a six-year hiatus after a year of use, and then
resumed using a year ago. Maternal grandmother was unsure
whether father was currently using methamphetamine but
thought he may have used previously. She denied knowledge of
domestic violence between mother and father, but said father is
verbally aggressive towards mother.
The Department next interviewed father. When informed
of Natalya’s positive toxicology results, father responded
“impossible.” Father denied knowing whether mother used drugs
during pregnancy, explaining that he lives apart from her, with
his older children, and mother lives with her uncle. Father
explained he is trying to find a bigger home so that he and
mother can reside together with the children. When pressed
further about mother’s substance abuse, father stated “I don’t
know anything. I’m surprised . . . she [tested] positive.” Father
denied using drugs and alcohol and accused the nurse who said
he looked “high” the day before of lying. He declined to drug test
that day but offered to test the next day.
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The Department next interviewed mother. After initially
saying she used methamphetamine only “once in a while” during
her pregnancy, mother eventually admitted she used two to
three times per week, as reported to the nurse and hospital social
worker. She generally confirmed what maternal grandmother
said about her usage history—that she started, then stopped for
six years, then resumed use more recently. She reported that
father uses methamphetamine “once in a while,” and that they
had used together in the past. She further reported that father
drinks alcohol, though not daily, and that he is verbally and
emotionally, though not physically, abusive towards her.
Mother, father, and maternal grandmother consented to
removal of Natalya and placement with maternal grandmother.
Mother and father agreed not to have unsupervised contact with
Natalya.
Four days after Natalya’s birth, the Department filed a
petition in the juvenile court. The petition contained four counts,
all for failure to protect under section 300, subdivision (b)(1).
Count b-1 was against mother only relating to her drug use
during pregnancy and Natalya’s resultant withdrawal symptoms.
Count b-2 was against both mother and father, based on,
respectively, mother’s current substance abuse and father’s
failure to protect Natalya from the effects of such abuse.
Count b-3 was against father only for abuse of methamphetamine
and alcohol. Count b-4 was against mother only relating to her
unresolved mental health and emotional issues.
Following a hearing, the juvenile court ordered Natalya
detained and set a jurisdictional and dispositional hearing for
February 2022.
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In the Department’s jurisdictional and dispositional report
filed in advance of that hearing, the Department disclosed new
information about the family and a changing narrative about
parents’ substance use. First, it noted father had three prior
child referrals concerning his older children with father’s
previous partner. The first referral, from 2009, alleged the
previous partner smoked marijuana in the children’s presence
and blew smoke in their faces, and that father used cocaine and
left cocaine within reach of the children. Both parents were
alleged to be physically abusive towards the children. The second
referral, from 2016, alleged father was delivered to the
emergency room by ambulance after he tried to drive with his
children in the car but was stopped by his own vomiting. His
toxicology report at the hospital was positive for
methamphetamine and cocaine. He conceded only alcohol use at
the time. The third referral, from 2017, alleged physical abuse by
father to his older son and attendant risk to his older daughter.
In a January 2022 discussion with the Department social
worker, mother disclosed that she used methamphetamine more
frequently during her pregnancy and closer to Natalya’s birth
than previously disclosed. She admitted to using throughout her
pregnancy, “sometimes once a day and usually [two] to [three]
times a day,” and most recently the day before Natalya’s birth.
She attributed her heavy use to the fact that “the father and her
would always be fighting,” which she characterized as “loud
arguments.” Further, she retracted her statement that father
uses drugs. She claimed her hospital report that she and father
used together was a product of drugs in her system at the time.
The Department reinterviewed father in January 2022 as
well. He claimed not to understand why Natalya was taken away
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and refused to engage on the subject of his substance abuse
history. He responded only that he had tested negative four
times since the case began (in actuality, he had only tested
twice). The Department’s report states father was “reluctant and
rude about talking to any social worker involved in his case. He
stated that he dislikes questions and does not have to answer
any.”
At the jurisdictional and dispositional hearing, the juvenile
court found all four jurisdictional allegations true and therefore
declared Natalya a dependent of the court under section 300. It
then proceeded to remove Natalya from both parents because
return to their physical custody would create a substantial risk of
detriment to her safety, protection, physical and emotional well-
being.
Father timely appealed.
DISCUSSION
1. Justiciability
Father is not challenging the jurisdictional findings as
against mother. Accordingly, even if father were to prevail, the
juvenile court would still have jurisdiction over Natalya pursuant
to counts b-1, b-2, and b-4. This is because “ ‘the minor is a
dependent if the actions of either parent bring [the minor] within
one of the statutory definitions of a dependent.’ ” (In re Briana V.
(2015) 236 Cal.App.4th 297, 308.) Generally, an appeal of a
jurisdictional finding is not justiciable under these
circumstances. (See In re Madison S. (2017) 15 Cal.App.5th 308,
329 [appeal from jurisdictional finding not justiciable where
jurisdiction would be established regardless of the appellate
court’s conclusions with respect to challenged jurisdictional
grounds].)
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Nevertheless, father requests that we exercise our
discretion to consider the merits of his appeal on the grounds set
forth in In re Drake M. (2012) 211 Cal.App.4th 754, 762-763,
which states that discretionary review is generally appropriate
when the challenged finding “(1) serves as the basis for
dispositional orders that are also challenged on appeal [citation];
(2) could be prejudicial to the appellant or could potentially
impact the current or future dependency proceedings [citation]; or
(3) could have other consequences for [the appellant], beyond
jurisdiction.” Following In re D.P. (2023) 14 Cal.5th 266,
however, appeals of jurisdictional findings that serve as the basis
for dispositional orders also challenged on appeal are no longer
discretionary but mandatory. (Id. at p. 283 [“where a
jurisdictional finding ‘serves as the basis for dispositional orders
that are also challenged on appeal’ [citation], the appeal is not
moot”].)
We therefore consider the merits of father’s appeal.
2. Count b-2 Against Father Is Unchallenged and, in
any Event, Supported by Substantial Evidence
Despite contending that “the petition, with all counts,
should have been dismissed as to him in its entirety,” father fails
to so much as discuss the allegations that he “knew or reasonably
should have known of the mother’s substance abuse [during her
pregnancy] and failed to take action to protect [Natalya]” and
that this “failure to protect the child endangers [Natalya’s]
physical health and safety, creates a detrimental home
environment and places [her] at risk of serious physical harm,
damage, danger, and failure to protect.”
Father only offers the general argument that “at the time of
the jurisdiction hearing, there was no defined risk of harm to
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Natalya from any actions of father.” This simply ignores the
juvenile court’s express findings that his inaction in the face of
mother’s daily methamphetamine use while pregnant put
Natalya at risk, and was in fact harmful to Natalya. Father’s
failure to address this finding against him forfeits his challenge
to it.
Even if father had addressed the allegations of count b-2,
we would still affirm the juvenile court’s finding. We review the
juvenile court’s jurisdictional findings under section 300 for
substantial evidence. (In re Natalie A. (2015) 243 Cal.App.4th
178, 184.) A father’s knowledge of the mother’s drug use and
failure to take steps to prevent it is sufficient to support
jurisdiction. (In re J.C. (2014) 233 Cal.App.4th 1, 6 [“Because
there was sufficient evidence that father knew mother was taking
drugs while she was pregnant and did nothing to protect his
unborn child from her conduct, we affirm the juvenile court’s
jurisdictional order”].)
Here, there was substantial evidence that father knew of
mother’s history of methamphetamine use, including during her
pregnancy. The juvenile court credited mother’s statements at
the hospital that she and father used methamphetamine
together. It was free to disregard mother’s later retraction,
particularly in light of evidence that father was verbally and
emotionally abusive to mother. As argued by counsel for Natalya
at the jurisdictional and dispositional hearing, such evidence
supports the inference that father influenced mother to recant
the derogatory information about him to the Department. (See
People v. Cuevas (1995) 12 Cal.4th 252, 277 [out-of-court
statements later recanted in court were substantial evidence
where there was reason to doubt sincerity of recantation].)
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Further, although mother and father did not live together
during the pregnancy, it is apparent they had significant contact.
Mother reported often using methamphetamine two to
three times per day, and that her use was triggered by constant
fighting with father. Given the frequency of contact between the
parents and the frequency of mother’s related methamphetamine
use, the trial court had ample basis to infer that father knew of
mother’s use while pregnant with Natalya.
Based on our conclusion that substantial evidence supports
count b-2 against father, we decline to consider father’s challenge
to count b-3.
3. Count b-2 Is Sufficient to Support the Juvenile
Court’s Removal Order
We review the juvenile court’s dispositional findings and
order for substantial evidence, bearing in mind the heightened
requirement of proof by clear and convincing evidence. (In re V.L.
(2020) 54 Cal.App.5th 147, 154–155.) We must determine
“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.” (Conservatorship of O.B. (2020)
9 Cal.5th 989, 995–996; see also V.L., at pp. 154–155 [standard of
review described in Conservatorship of O.B. applies to removal
findings under § 361, subd. (c)].) Even in conducting this review,
we still “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., at p. 996.)
Substantial evidence supports removal. Father’s
indifference to mother’s drug use during pregnancy evinces a lack
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of concern for the safety and well-being of Natalya. He continues
to avoid the topic of his own drug history, despite appearing
“high” at Natalya’s birth and prior referrals that included
evidence of cocaine and methamphetamine use. He continues to
minimize mother’s struggles and deny knowledge of them,
despite evidence he previously used with mother and that she
used methamphetamine during her pregnancy because of father’s
treatment of her. Denial is a relevant factor to consider when
determining risk to a child placed with the parent. (In re
Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.)
Moreover, father told the Department he believed the only
thing he needed to accomplish in the case was to find a larger
home so he could live with mother, Natalya, and his other
children, as a family. Mother also hopes to live with father and
Natalya as a family. This desire, coupled with father’s defiant
attitude toward the Department throughout the case, creates the
risk that father would give mother unlimited access to Natalya if
she were placed with him. Even without regard to any drug use
issues father has, creating a situation in which the parents could
circumvent removal from mother in the early stages of her
sobriety and place her and Natalya unsupervised with father—
the trigger for mother’s drug use—is also a danger to Natalya.
Father argues that Natalya could have been placed safely
with him because he was also taking care of his 16-year-old
twins. He also notes he was testing clean at the time of the
jurisdictional and dispositional hearing. These facts do not
negate the juvenile court’s finding that staying with father would
be dangerous in light of his indifference towards mother’s
prenatal drug use. Even if father’s home was safe for older
children, the juvenile court was free to conclude it was unsafe for
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an infant. Courts have long recognized younger children are
more vulnerable to parental neglect. (See In re Rocco M. (1991)
1 Cal.App.4th 814, 824 [“the absence of adequate supervision and
care poses an inherent risk to the[] physical health and safety” of
children of “tender years”].)
Substantial evidence supported removal of Natalya from
both parents to ensure her welfare while her parents receive
reunification services and can be more fully assessed by the
Department and juvenile court.
DISPOSITION
The juvenile court’s orders exercising jurisdiction over
Natalya and removing her from father’s custody are affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
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