In re B.M. CA2/4 ( 2024 )

Filed 5/23/24 In re B.M. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re B.M., B322622 and B331519
a Person Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 21CCJP03978)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
N.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Gabriela H. Shapiro, Commissioner. Affirmed as Modified.
Suzanne M. Nicholson, by appointment of the Court of Appeal, for
Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County
Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and
Respondent.
N.M. (father) appeals from the jurisdiction and disposition orders of the
juvenile court regarding his daughter, B.M. (born Sept. 2013). Father
contends: (1) there was insufficient evidence to support the court’s finding
sustaining the allegation that father’s substance abuse raised a substantial
risk that B.M. will suffer serious physical harm; and (2) there was
insufficient evidence to support the court’s finding that removal of B.M. from
his custody was necessary to protect her. We conclude there was sufficient
evidence to support the court’s jurisdiction and disposition orders.
Father separately appeals from the juvenile court’s exit order.1 Father
argues: (1) the court abused its discretion in awarding M.C.D. (mother) sole
physical custody and (2) the order impermissibly conditions future
modification of the order on father’s completion of individual counseling with
a licensed therapist. We conclude there was no abuse of discretion in
awarding mother sole physical custody. However, the court lacked authority
to set a condition for modification of the custody order.
Therefore, we affirm the jurisdiction and disposition orders. We also
affirm the exit order, as modified.
DISCUSSION
I. Jurisdiction and Disposition Orders
A. Standard of Review and Applicable Law
“‘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
1 This court, on its own motion, consolidated father’s two appeals.
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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.]’”
(In re I.J. (2013) 56 Cal.4th 766, 773.)
Substance abuse may serve as a basis for a jurisdictional finding under
Welfare and Institutions Code section 300, subdivision (b).2 Section 300,
subdivision (b)(1)(D) authorizes the juvenile court to assert jurisdiction over a
child when “the child has suffered serious physical harm or there is a
substantial risk that the child will suffer serious physical harm ‘by the
inability of the parent . . . to provide regular care for the child due to the
parent’s . . . substance abuse.’” (In re Rebecca C. (2014) 228 Cal.App.4th 720,
724.) “In short, there are three elements for jurisdiction under section 300,
subdivision (b), namely, (1) neglectful conduct or substance abuse by a parent
in one of the specified forms, (2) causation, and (3) serious physical harm to
the child, or a substantial risk of such harm.” (Id. at pp. 724–725.)
“The finding of dependency cannot be based on substance abuse alone;
jurisdiction requires a substantial risk of harm to the child arising from the
substance abuse.” (In re J.A. (2020) 47 Cal.App.5th 1036, 1046.) “[D]rug use
or substance abuse, without more, is an insufficient ground to assert
jurisdiction in dependency proceedings under section 300.” (In re L.W. (2019)
32 Cal.App.5th 840, 849.) However, “‘the court need not wait until a child is
seriously abused or injured to assume jurisdiction and take steps necessary to
protect the child [citation]. The court may consider past events in deciding
whether a child currently needs the court’s protection. [Citation.] A parent’s
“‘[p]ast conduct may be probative of current conditions’ if there is reason to
2 All further statutory references are to the Welfare and Institutions
Code.
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believe that the conduct will continue.” [Citation.]’ [Citation.]” (In re J.A.,
supra, 47 Cal.App.5th at p. 1048.)
A child cannot be removed from the physical custody of his or her
parents “unless the juvenile court finds clear and convincing evidence . . .
[t]here is or would be a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the minor if the minor were
returned home, and there are no reasonable means by which the minor’s
physical health can be protected without removing the minor from the
minor’s parent’s . . . physical custody.” (§ 361, subd. (c)(1).) “The court shall
make a determination as to whether reasonable efforts were made to prevent
or to eliminate the need for removal of the minor from his or her home” and
“shall state the facts on which the decision to remove the minor is based.”
(§ 361, subd. (e).)
“‘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.” [Citation.] The court may consider a parent’s past conduct as well as
present circumstances. [Citation.]’” (In re Alexzander C. (2017) 18
Cal.App.5th 438, 451.)
B. Jurisdiction Order
Father disputes there was sufficient evidence to support the juvenile
court’s finding true the allegations that father suffered from substance abuse,
and that abuse created a substantial risk of harm to B.M. Appellate courts
have differed in assessing what evidence is required to find substance abuse.
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Father maintains this court should use the approach adopted in In re Drake
M. (2012) 211 Cal.App.4th 754, which requires a medical professional
diagnosis or evidence of substance abuse as that term is defined by the
Diagnostic and Statistical Manual of Mental Disorders (DSM). (See id. at p.
766.)
Our Supreme Court recently settled this issue in In re N.R. (2023) 15
Cal.5th 520. The court held that “neither of these showings [a medical
professional diagnosis or satisfaction of the DSM criteria for a substance use
disorder] is essential.” Instead, substance abuse is assigned its ordinary
meaning, “essentially, the excessive use of drugs or alcohol.” (Id. at p. 531.)
The court acknowledged “this commonplace understanding of substance
abuse may seem broad and potentially capable of inconsistent application if
read in isolation.” (Id. at p. 540.) However, the statute limits dependency
jurisdiction based on substance abuse to “when this abuse leads to an
‘inability’ on the part of a parent or guardian ‘to provide regular care for [a]
child’ . . . that causes the child to suffer, or creates ‘a substantial risk that
the child will suffer, serious physical harm or illness’ [citation].” (Ibid.)
The record contains substantial evidence demonstrating father’s use of
methamphetamine constituted substance abuse. Father asserts he was an
occasional user of methamphetamine and that three positive tests are
insufficient to show substance abuse. Our Supreme Court did not set any
brightline number of positive drug tests that constitute substance abuse,
rather it simply held that use of the drug must be excessive. (In re N.R.,
supra, 15 Cal.5th at pp. 531, 539–540.) The evidence is sufficient to show
father’s use of methamphetamine was excessive.
Methamphetamine is “‘an inherently dangerous drug known to cause
visual and auditory hallucinations, sleep deprivation, intense anger, volatile
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mood swings, agitation, paranoia, impulsivity, and depression.’” (In re
Alexzander C., supra, 18 Cal.App.5th at p. 449, disapproved of on other
grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989 and In re N.R.,
supra, 15 Cal.5th 520.) Father tested positive for methamphetamine on May
26, 2022, when he showed up to the hospital disoriented with bleeding and
swollen feet, exhibiting paranoid behavior, and experiencing suicidal
ideations. Father also tested positive for methamphetamine on two prior
occasions in April 2020 and May 2020.
Shortly before the May 26, 2022 positive test, father engaged in a
physical altercation with the paternal grandparents at their home on May 24,
2022. Father spoke loudly to the paternal grandparents and slammed his
hands on the table. Father pushed the paternal grandmother to the bed and
shoved the paternal grandfather to the ground. The paternal grandmother
called law enforcement due to father’s violent behavior, but he left when they
arrived at the home. Law enforcement issued the paternal grandparents a
temporary restraining order against father.
Father also exhibited paranoia during this incident. Father wanted to
grab the paternal grandmother’s phone because he thought she was
videotaping him. Father also thought people were going in his room and
taking his possessions. Father argues this behavior was due to his reaction
to news of a school shooting in Uvalde, Texas. However, the juvenile court
could reasonably conclude father’s actions resulted from methamphetamine
use given his symptoms and the proximity of his positive test.
Father relies on In re L.C. (2019) 38 Cal.App.5th 646 to show his
positive tests for methamphetamine were insufficient to constitute substance
abuse. Father’s reliance on In re L.C. is misplaced. While the parent in that
case used methamphetamine around seven times in about a year, there was
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no evidence he exhibited violent or paranoid behavior. (See id. at pp. 652–
654.) The parent also “stopped using methamphetamine, arranged for his
own drug tests to show that he had stopped using, enrolled in a class
concerning controlled substances, and acknowledged his use of
methamphetamine at the jurisdictional hearing.” (Id. at p. 653.)
In contrast here, father denied his positive tests as “a hoax,” never
acknowledged using methamphetamine, and was not open to substance abuse
treatment. (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 [“One cannot
correct a problem one fails to acknowledge”].) Father’s methamphetamine
use led to violent behavior that caused harm to close family members who
were primary caretakers for B.M. Father’s aggressive conduct was serious
enough to compel the paternal grandmother to contact law enforcement and
obtain a temporary restraining order against father. The negative
manifestations of father’s drug use were not confined or limited, causing no
harm to others. Accordingly, substantial evidence shows father’s use of
methamphetamine was excessive and thus constituted substance abuse,
placing B.M. at a substantial risk of harm.
C. Disposition Order
Father contends the juvenile court erred in removing B.M. from father’s
custody because the record lacks substantial evidence that B.M. would be in
substantial danger if returned to father and that no reasonable means
existed to protect B.M. without removal.
Substantial evidence supports the juvenile court’s removal order. The
same evidence supporting jurisdiction also supports the dispositional order.
As discussed above, father continued to deny any use or knowledge of
methamphetamine despite multiple positive drug tests. Father also denied
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or downplayed his physical altercation with the paternal grandparents, who
were caretakers for B.M. The record contains evidence that father has a
history of violent behavior in the family home and using methamphetamine,
an inherently dangerous drug. Thus, the court did not err in finding there
was a substantial danger to B.M. if she was returned home and that
removing B.M. from father’s custody was needed to protect her well-being.
Father argues he could have continued to properly care for B.M. while
he worked on the court-ordered case plan, subject to the Los Angeles County
Department of Children and Family Services’ (DCFS) supervision. However,
father’s reluctance to address his substance abuse supports the court’s
finding that there were no reasonable means by which B.M. could be
protected without removing her from father’s custody.
II. Exit Order
Father contends the juvenile court abused its discretion because
awarding sole physical custody to mother was not in B.M.’s best interest.
The juvenile court has authority to issue custody and visitation orders
when it terminates jurisdiction over a minor. (§ 362.4, subd. (a).) Such
orders are commonly referred to as “exit orders.” (In re Cole Y. (2015) 233
Cal.App.4th 1444, 1455.) In issuing exit orders, juvenile courts look to the
totality of the circumstances to assess what outcome is in the child’s best
interests. (In re J.T. (2014) 228 Cal.App.4th 953, 963–964.) A reviewing
court will not overturn an exit order unless it is arbitrary, capricious, or
absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
The juvenile court’s exit order was not based on arbitrary or capricious
factors. The court found mother had complied with the case plan and
provided a safe, appropriate home for B.M. Mother completed drug
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treatment. The record shows mother was proactive in rescheduling drug
tests she missed due to work. Mother maintained her sobriety. Mother
expressed she would continue to work on her sobriety and intended to have
B.M. move in with her the following year. Mother planned on leaving B.M.
with the paternal grandparents for the next school year. Father does not
dispute mother’s compliance with the case plan.
In contrast, the court indicated father had not addressed all items in
his case plan and that there was insufficient information of his compliance.
Father had made no substantial progress in the drug abuse treatment
program with random testing. Father had only started receiving negative
drug tests in May 2023. Before that, father tested positive for marijuana 11
times and for opiates once between March 24, 2023, and May 1, 2023. Father
maintains his positive test for opiates was attributable to a recent
vaccination. The record contains no medical evidence supporting such a
claim. The court could reasonably find father’s drug treatment progress was
too recent and insufficient given his history.
Father argues that the court crafted the exit order as a way to punish
him for failing to comply with the case plan. (See In re N.M. (2023) 88
Cal.App.5th 1090, 1095–1096.) We disagree. Given father’s history of violent
behavior in the family home and substance abuse, the court had a reasonable
basis to deny father physical custody when he had not fully complied with his
case plan. While it may be true that father enjoyed a strong bond with B.M.,
it is not sufficient to award father physical custody on that basis alone. On
the other hand, mother complied with her case plan and provided a safe,
appropriate home for B.M. The court could reasonably conclude that
awarding mother sole physical custody was in B.M.’s best interest.
Therefore, we conclude there was no abuse of discretion.
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Lastly, father challenges the exit order on the ground that the court
lacked jurisdiction to condition his ability to seek modification of the order on
his completion of individual counseling. DCFS does not take a position on
this issue. We agree with father.
“[A]n exit order ‘shall not be modified in a proceeding or action . . .
unless the court finds that there has been a significant change of
circumstances since the juvenile court issued the order and modification of
the order is in the best interests of the child.’ . . . [T]he decision to modify an
exit order . . . is[] within the province of the family court, and then only upon
a finding of ‘significant change of circumstances’ and that the modification is
in ‘the best interests of the child.’” (In re Cole Y., supra, 233 Cal.App.4th at p.
1456.)
Here, the juvenile court’s custody order provides, in relevant part:
“Upon completion of individual counseling with a licensed therapist, father
can go to family law court to request changes in the terms of his custody
arrangement and visitation privileges as indicated in this order.” We agree
the court’s requirement for father to complete counseling is an impermissible
precondition of the family court’s modification of the custody and visitation
orders. While completing counseling is a significant factor the family court
may consider in deciding whether to modify the custody and visitations
orders, such decision is within the family court’s province.
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DISPOSITION
The jurisdiction and disposition orders are affirmed. The following
language from the exit order shall be deleted: “Upon completion of individual
counseling with a licensed therapist.” As modified, the order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, J.
WE CONCUR:
CURREY, P. J.
MORI, J.
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