In re Kieran S. ( 2024 )

Filed 4/18/24; Modified & Certified for Publication 5/6/24 (order attached)
(Unmodified opinion following transfer from Supreme Court)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re KIERAN S., a Person Coming B318672
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 19LJJP00321A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
AMBER C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Susan Ser, Judge. Affirmed.
Jonathan Grossman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter Ferrera, Principal Deputy
County Counsel, for Plaintiff and Respondent.
____________________________________
INTRODUCTION
Amber C., mother of then two-year-old Kieran S., appeals
from the juvenile court’s jurisdiction findings and disposition
orders after the court sustained a petition by the Los Angeles
County Department of Children and Family Services under
Welfare and Institutions Code section 300, subdivision (b). In our
prior opinion we affirmed the juvenile court’s findings and orders.
The Supreme Court granted review and transferred the case back
to us with directions to vacate our prior opinion and reconsider
our decision in light of In re N.R. (2023) 15 Cal.5th 520, which
held, among other things, substance abuse is not prima facie
evidence of a parent’s inability to provide regular care to a child
of tender years (six years old or younger). Because under In re
N.R. Amber’s substance abuse still put Kieran at a substantial
risk of serious physical harm, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Department Investigates the Family, Amber
Absconds with Kieran, and the Juvenile Court
Sustains a Petition Under Section 300
Kieran’s parents are Amber and Victor S. (not a party to
this appeal). In April 2019, when Kieran was two months old,
the Department received a referral stating the parents used
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drugs in the child’s presence. Victor admitted he used marijuana;
Amber tested positive for amphetamine, methamphetamine, and
morphine. An investigation found Amber was living with Kieran
in a home where other individuals were abusing drugs. Despite
her positive test results, Amber denied using methamphetamine,
insisted her positive test results were falsified, and claimed she
did not use any drugs “while with [Kieran].” After failing to
cooperate with welfare checks and evading the Department,
Amber absconded with Kieran. The Department filed a petition
alleging her substance abuse posed a substantial risk of serious
physical harm to Kieran.
For nearly two years, Amber had no communication with
the Department and could not be found. In October 2021 a
detective from the Anderson Police Department found Amber and
Kieran in Shasta County, and Amber admitted she had recently
used methamphetamine and had a “problem with meth.” Though
Amber’s home in Shasta County was clean and Kieran appeared
well, law enforcement found a methamphetamine pipe in an
unattached room of the house, although at the time of the
inspection the room “appeared to be secured from access from
Kieran.” The detective reported that, because “there was a lot of
traffic in and out of the home,” there was a suspicion it was a
“drug home.” Amber admitted to the detective that she had been
addicted to opiates for 10 years and that she used
methamphetamine recreationally. Victor confirmed Amber used
drugs. On December 1, 2021 the Department filed an amended
petition in Los Angeles County (where Amber had returned and
Kieran had been placed in foster care) that included allegations
Amber exposed Kieran to risk of harm by absconding with him.
3
At the January 28, 2022 jurisdiction hearing on the
amended petition the juvenile court sustained counts under
section 300, subdivision (b), alleging Amber abused substances,
failed to protect Kieran from Victor’s mental and emotional
issues, and absconded with Kieran. At the February 17, 2022
disposition hearing the juvenile court declared Kieran a
dependent child of the court, removed him from his parents,
ordered Amber to attend a drug treatment program, and ordered
reunification services.
B. We Affirm the Juvenile Court’s Jurisdiction Findings
and Disposition Orders
Amber appealed from the jurisdiction findings and
disposition orders. 1 Amber argued that there was no evidence
she was under the influence of drugs when Kieran was detained
and that there was no evidence of neglect or risk of harm to
Kieran in her care. We held substantial evidence supported the
juvenile court’s finding Amber’s drug abuse created a substantial
risk of physical harm to Kieran. We explained that, under In re
Drake M. (2012) 211 Cal.App.4th 754, disapproved in In re N.R.,
supra, 15 Cal.5th at page 560, footnote 18, because Kieran was a
child under the age of six, the juvenile court’s finding Amber was
abusing substances created a rebuttable presumption of a
substantial risk of physical harm to Kieran. We also concluded
Amber did not rebut this presumption.
1 Amber challenged the disposition orders only to the extent
substantial evidence did not support the juvenile court’s
jurisdiction findings.
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C. The Supreme Court Grants Review and Transfers the
Cause
The Supreme Court granted Amber’s petition for review
and transferred the case to us with directions to vacate our
decision and reconsider Amber’s appeal in light of In re N.R.,
supra, 15 Cal.5th 520. In that case the Supreme Court held that
a finding of substance abuse under section 300,
subdivision (b)(1)(D), requires neither “a diagnosis by a medical
professional” nor “satisfaction of the prevailing criteria for a
substance use disorder as specified within the Diagnostic and
Statistical Manual of Mental Disorders” and that a parent’s
substance abuse, without more, is not “prima facie evidence of
. . . an inability to provide regular care for a child” or of a
“substantial risk of serious physical harm when the child is of
‘tender years . . . .’” (Id. at pp. 531, 554, 560-561.) The Supreme
Court also held that, though the “tender years presumption” was
“inconsistent with the Legislature’s intent,” the “age of a child
may bear upon whether substance abuse renders a parent or
guardian unable to provide that child with regular care, and
whether the child is thereby placed at substantial risk of serious
physical harm or illness.” (Id. at pp. 531-532.)
The parties filed supplemental briefs pursuant to
California Rules of Court, rule 8.200(b). In her supplemental
brief, Amber contends her drug use was not excessive, an
argument she had not previously made. She also argues her
drug use and conduct in absconding with Kieran did not expose
Kieran to risk of physical harm. The Department contends that
Amber’s ongoing drug use compromised her ability to care for
and protect Kieran and that the court should not allow Amber to
capitalize on the fact she was a fugitive for two years by arguing
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the Department submitted insufficient evidence of risk of harm
to Kieran.
DISCUSSION
A. Applicable Law and Standard of Review
The purpose of section 300 “‘“is to provide maximum safety
and protection for children who are currently being physically,
sexually, or emotionally abused, being neglected, or being
exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.”’”
(In re N.R., supra, 15 Cal.5th at p. 537; see § 300.2, subd. (a).)
“Although section 300 requires proof the child is subject to the
defined risk of harm at the time of the jurisdiction hearing
[citations], the court need not wait until a child is seriously
abused or injured to assume jurisdiction and take steps necessary
to protect the child. [Citations.] The court may consider past
events in deciding whether a child presently needs the court’s
protection.” (In re Cole L. (2021) 70 Cal.App.5th 591, 601-602.)
Section 300, subdivision (b)(1), “allows a child to be
adjudged a dependent of the juvenile court 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 his or her parent or guardian to adequately supervise
or protect the child, or the willful or negligent failure of the
child’s parent or guardian to adequately supervise or protect the
child from the conduct of a custodian with whom the child has
been left.’ 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
6
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., supra,70 Cal.App.5th at p. 601.) 2
“‘“‘In reviewing a challenge to the sufficiency of the
evidence supporting the jurisdictional findings and disposition,
we determine if substantial evidence, contradicted or
uncontradicted, supports them. “In making this determination,
we 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.” [Citation.] “We do not reweigh the evidence or
exercise independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.”’”
[Citations.] However, “[s]ubstantial evidence is not synonymous
with any evidence. [Citation.] To be substantial, the evidence
must be of ponderable legal significance and must be reasonable
in nature, credible, and of solid value.”’” (In re S.F. (2023)
91 Cal.App.5th 696, 713.)
Finally, “[a]pplication of the doctrine of justiciability in the
dependency context leads to the conclusion that ‘[w]hen a
dependency petition alleges multiple grounds for its assertion
that a minor comes within the dependency court’s jurisdiction, a
reviewing court can affirm the juvenile court’s finding of
2 The Legislature amended section 300, effective January 1,
2023, in part by revising subdivision (b)(1) to specify in separate
subparagraphs ways in which a child may come within the
jurisdiction of the juvenile court due to the failure or inability of
the child’s parent to adequately supervise or care for the child.
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jurisdiction over the minor if any one of the statutory bases for
jurisdiction that are enumerated in the petition is supported by
substantial evidence. In such a case, the reviewing court need
not consider whether any or all of the other alleged statutory
grounds for jurisdiction are supported by the evidence.’
[Citation.] This is true because no effective relief could be
granted in such a situation, as jurisdiction would be established
regardless of the appellate court’s conclusions with respect to any
such additional jurisdictional grounds.” (In re Madison S. (2017)
15 Cal.App.5th 308, 328-329.) As the Supreme Court explained,
“the principle that ‘[d]ependency jurisdiction attaches to a child,
not to his or her parent’ [citation], means that “‘[a]s long as there
is one unassailable jurisdictional finding, it is immaterial that
another might be inappropriate,’”” so that “where there are
multiple findings against one parent; the validity of one finding
may render moot the parent’s attempt to challenge the others.”
(In re D.P. (2023) 14 Cal.5th 266, 283-284.)
B. Substantial Evidence Supported the Juvenile Court’s
Jurisdiction Findings Based on Amber’s Substance
Abuse
1. Substantial Evidence Supported the Juvenile
Court’s Finding Amber Abused Drugs
Amber argues substantial evidence did not support the
juvenile court’s finding she abused drugs. But it did. Amber’s
2019 drug test result confirmed she used amphetamine,
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methamphetamine, and morphine. 3 When law enforcement
finally found Amber and Kieran after they had been missing for
two years, Amber admitted that she had used methamphetamine
within the previous two days and that she had a long-standing
substance abuse issue. 4 A pipe for smoking methamphetamine
was discovered on the premises. And, as Amber admits, “[h]er
absence in the two year gap” while she was a hiding from child
protective agencies and avoiding law enforcement, “could give
rise [to] an inference she used during that period.”
Amber’s repeated denials of drug use, despite evidence to
the contrary, further supported the juvenile court’s finding of
drug abuse. Initially, she refused a drug test and denied using
drugs, even though she tested positive for amphetamine,
methamphetamine, and morphine. She also disputed the
accuracy of her positive test result, claiming that it was falsified
and that there was no proof she used drugs around Kieran. By
October 2021, despite admitting she had recently used
methamphetamine, Amber claimed she had been drug-free for
five years. These denials and inconsistent statements were
further evidence of drug abuse. (See In re K.B. (2021)
59 Cal.App.5th 593, 601 [juvenile court could reasonably infer
from the mother’s “dissembling about . . . drug use” she was
“trying to hide [an] ongoing drug addiction”]; In re A.F. (2016)
3 Cal.App.5th 283, 293 [“‘[D]enial is a factor often relevant to
determining whether persons are likely to modify their behavior
3 Amber said she had a prescription for morphine. She
promised to show it to the Department, but she never did.
4 Amber also acknowledged she was arrested in 2017 for
possessing a controlled substance for sale.
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in the future without court supervision.’”]; In re Gabriel K. (2012)
203 Cal.App.4th 188, 197 [“[o]ne cannot correct a [drug] problem
one fails to acknowledge”].)
2. Substantial Evidence Supported the Juvenile
Court’s Finding Amber’s Drug Abuse Created a
Substantial Risk of Physical Harm
As discussed, in In re N.R., supra, 15 Cal.5th 520 the
Supreme Court held substance abuse, without more, is not prima
facie evidence of a parent’s inability to provide regular care that
results in a substantial risk of physical harm to a child of tender
years. (Id. at pp. 556-558.) Instead, the Supreme Court held, “an
inability to provide regular care and a substantial risk of serious
physical harm or illness must be established on the facts of each
case, without relying on a categorical rule providing that 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’ to a child of ‘“tender years.”’”
(Id. at p. 559)
Substantial evidence supported the juvenile court’s finding
Amber’s drug use placed Kieran at substantial risk of physical
harm. Amber tested positive for amphetamine,
methamphetamine, and morphine when Kieran was only two
months old and in need of constant care and supervision. (See
In re N.R., supra, 15 Cal.5th at p. 559 [“a child’s youth and
maturity level can bear upon the care that the child may require
and whether a parent’s . . . substance abuse places the child at
substantial risk of serious physical harm”]; id. at 558 [“It is
reasonable for courts to infer that very young children require a
substantial degree of close supervision.”].) In addition, because
10
at two and a half years old Kieran was probably walking, the
presence of a methamphetamine pipe nearby (albeit in a room the
police found was secure at the time) and in a house suspected of
drug use posed a risk to his safety. Amber’s denial she used
methamphetamine only increased the risk of harm to Kieran.
(See In re E.E. (2020) 49 Cal.App.5th 195, 213 [parent’s refusal to
acknowledge responsibility for the conduct giving rise to the
dependency proceedings supports a finding the faces a current
risk of harm]; In re T.V. (2013) 217 Cal.App.4th 126, 133
[“[a] parent’s past conduct is a good predictor of future
behavior”].)
Amber argues “there was no evidence of the child suffering
or at risk of suffering physical harm. There were no referrals for
two years. There were no medical records of injuries or signs of
neglect over time.” The juvenile court, however, properly
considered the risks and implications of Amber’s conduct in
absconding with her young child during those two years.
Absconding with a child not only frustrates the purpose of
dependency proceedings, it increases the likelihood of harm to the
child. (See In re E.M. (2012) 204 Cal.App.4th 467, 469 [mother,
by absconding from the jurisdiction for two years, “undermined
and frustrated the juvenile court’s ability to implement the
dependency law procedures intended to protect and benefit the
interests of her children”]; In re Kamelia S. (2000) 82 Cal.App.4th
1224, 1229 [parent’s “secluding the minor child undermines and
frustrates the entire purpose of the dependency law” and makes
it “impossible for the court to extend its protection” to the child].)
By removing Kieran from the jurisdiction and oversight of the
court, refusing to cooperate with the Department, and remaining
a fugitive for two years, Amber placed her and her young son in a
11
situation that limited their access to medical care and services
they needed. (See In re Trebor UU (N.Y. App. Div. 2001)
279 A.D.2d 735, 737 [mother’s “choice to take flight with her two
children to a foreign country in an effort to evade legal process
instead of attending to such matters and, if necessary,
immediately seeking out governmental officials to arrange for the
proper placement of her children in foster care, cannot be said to
be ‘reasonable’ or proper parental supervision or guardianship”].)
Moreover, the absence of (known) referrals or medical
records indicating harm or neglect during the two-year period
Amber was on the run from child protective agencies and law
enforcement was not evidence Kieran was not at risk of harm,
but a consequence of Amber’s decision to abscond, a decision that
only increased the risk of harm to her child. (See In re J.M.
(2019) 40 Cal.App.5th 913, 923 [“[t]he reason . . . there was not
more recent evidence” of risk of harm was that the mother
“absconded with the children so the dependency proceedings
could not continue”].) By fleeing with Kieran, Amber deprived
the Department of the ability to complete its investigation
whether Kiernan faced a risk of harm and whether it was
necessary for the Department to intervene and provide the family
services. (See id. at p. 923 [mother’s positive drug tests,
admission of drug use, and decision to abscond with the child
“was an unrebutted basis to infer [m]other’s drug use was
continuing, inhibiting her judgment, and interfering with her
ability to care for and protect the [child]”].) Thus, while Amber
asserts that the absence of harm during the two years she was
hiding with Kieran in Shasta County (or somewhere) negated the
12
risk to Kieran, the very act of absconding with him contributed to
the substantial risk of harm her conduct created. 5
DISPOSITION
The juvenile court’s jurisdiction findings and disposition
orders are affirmed.
SEGAL, Acting P. J.
We concur:
FEUER, J.
MARTINEZ, J.
5 Because substantial evidence supported at least one of the
juvenile court’s jurisdiction findings, that is enough. (In re
Madison S., supra, 15 Cal.App.5th at pp. 328-329; see In re A.F.,
supra, 3 Cal.App.5th at p. 290 [“if one of the three jurisdictional
bases relative to mother’s conduct is supported by substantial
evidence, the juvenile court’s jurisdictional finding must be
affirmed regardless of whether either of the other alleged
grounds for jurisdiction is supported by the evidence”].)
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Filed 5/6/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re KIERAN S., a Person Coming B318672
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 19LJJP00321A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES, ORDER MODIFYING AND
CERTIFYING OPINION FOR
Plaintiff and Respondent, PUBLICATION; NO CHANGE IN
APPELLATE JUDGMENT
v.
AMBER C.,
Defendant and Appellant.
THE COURT:
The opinion filed on April 18, 2024 and not certified for
publication is modified as follows:
On page 9, line 8, delete the comma between “avoiding law
enforcement” and “could give rise” so that the sentence reads:
And, as Amber admits, “[h]er absence in the two year
gap” while she was a hiding from child protective
agencies and avoiding law enforcement “could give rise
[to] an inference she used during that period.”
On page 11, line 8, in the parenthetical for In re E.E. (2020)
49 Cal.App.5th 195, 213, add the word “child” between “the” and
“faces” so that the parenthetical reads:
parent’s refusal to acknowledge responsibility for the
conduct giving rise to the dependency proceedings supports
a finding the child faces a current risk of harm
The opinion in this case filed April 18, 2024 was not
certified for publication. Because the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c), respondent’s request for publication under
California Rules of Court, rule 8.1120(a), is granted.
IT IS HEREBY CERTIFIED that the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c); and
ORDERED that the words “Not to be Published in the
Official Reports” appearing on page 1 of said opinion be deleted
and the opinion be published in the Official Reports.
SEGAL, Acting P. J. FEUER, J. MARTINEZ, J.
2