In re Harmony B. CA2/4

Filed 5/3/22 In re Harmony B. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re HARMONY B., et al., Persons B311098
Coming Under Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 20LJJP00624A-C)
Plaintiff and Respondent,
v.
BRITTANY B.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los
Angeles County, Michael C. Kelley, Judge. Affirmed.
David M. Yorton, Jr., under appointment by the Court
of Appeal, for Defendant and Appellant.
Office of the County Counsel, Rodrigo A. Castro-Silva,
County Counsel, Kim Nemoy, Assistant County Counsel,
and Timothy M. O’Crowley, Deputy County Counsel, for
Plaintiff and Respondent.
_______________________________________________
INTRODUCTION
In January 2021, the juvenile court found jurisdiction
over Harmony B. (then eight years old), Demi C. (then two
years old), and Athena B. (then four months old) based on a
petition filed by the Los Angeles County Department of
Children and Family Services (DCFS) alleging counts under
Welfare and Institutions Code section 300, subdivisions
(b)(1) and (j) (Section 300(b)(1) and Section 300(j)).
Specifically, the court found the children were at substantial
risk of harm from appellant-mother Brittany B.’s drug
abuse, her history of domestic violence with Demi and
Athena’s father Dominic C., and her mental health issues.
At disposition, the court removed all three children from
Mother, then terminated jurisdiction over Harmony,
granting sole physical custody to her non-offending father
N.G.
On appeal, Mother contends the court erred in
assuming jurisdiction and then removing the children from
her care because substantial evidence did not support a
finding that she abused drugs, had a history of domestic
2
violence with Dominic, or had mental health issues, or that
any of these endangered the children. She additionally
argues the court erred in failing to consider alternatives to
removal. Finally, she argues the court abused its discretion
in granting N.G. sole physical custody of Harmony. Finding
no error, we affirm.
STATEMENT OF RELEVANT FACTS
A. Family Background
Brittany B. (born in 1989) is the mother of Harmony B.
(born February 2012), Demi C. (born October 2018), and
Athena B. (born September 2020). N.G. is the father of
Harmony, and Dominic C. is the father of Demi and Athena.1
In June 2019, a family law court entered an order evenly
splitting custody of Harmony between Mother and N.G.
In July 2018, Mother threw Dominic’s headphones
during an argument about Dominic’s “constant disrespect”
toward her; Dominic responded by pushing Mother. In April
2019, the police received a report that Dominic had thrown a
water bottle at Mother, hitting her in the thigh. This led to
Dominic’s arrest for battery. Dominic reported that the
incident also resulted in a protective order preventing him
from contacting Mother.
In February 2020, DCFS received a referral for general
neglect and emotional abuse, alleging that Mother was
1 Neither N.G. nor Dominic is a party to this appeal.
3
abusing methamphetamine and marijuana, and also drank
alcohol nightly. Mother denied the allegations. After
Mother refused to participate in an on-demand drug test,
DCFS closed the investigation as inconclusive due to lack of
evidence.
In May 2020, Dominic was charged with violating
Penal Code section 273.5, subdivision (a) (infliction of
corporal injury upon the parent of the offender’s child).
Dominic pled no contest and was sentenced to nine days in
jail and three years of probation, and ordered to enroll in a
52-week domestic violence treatment program. The court
also imposed a 10-year protective order, requiring Dominic
to stay away from and have no contact with Mother.
In July 2020, DCFS received another referral for
general neglect. The referral alleged three incidents: In May
2020, during an argument between Mother and Dominic,
Mother threw a laptop at Dominic, and Dominic punched her
in the face. In June 2020, during another argument,
Dominic threw an office chair at Mother, hitting her on the
wrist. In July 2020, after Dominic “constantly disrespected”
Mother, she threw his cell phone and he punched her.
Though the last incident was referred to law enforcement,
Mother refused an emergency protective order. The referral
was evaluated out.2
2 The term “evaluated out” means “the child protective
services screener did not find sufficient evidence of physical
abuse or child abuse and neglect to assign the referral to an
(Fn. is continued on the next page.)
4
In August 2020, Mother purportedly went to Dominic’s
house at 1:00 a.m. and assaulted him, yelling: “‘Why do you
have my daughter in your mouth, [k]eep my daughter out
your mouth [sic].’”
B. DCFS Investigates a Referral
On September 27, 2020, DCFS received an immediate
response referral, alleging that Mother had just given birth
to Athena, and had tested positive for opiates and
amphetamines. Mother denied using amphetamines, but
admitted that the previous day she had used cocaine and
taken Norco. Mother claimed she had not known she was
pregnant.
The next day, a children’s social worker (CSW)
confirmed the allegations with the reporting party, who
added that Mother had tested negative for cocaine, and had
stated she took her grandfather’s Norco pill due to back pain.
Mother had told hospital staff that her name was Alexandra
M., and that she had no other children.3 After giving birth,
Mother checked out of the hospital at 12:55 a.m., claiming
she needed to go care for her grandfather who suffered from
dementia; Athena remained at the hospital. Athena
subsequently tested positive for methamphetamines, and
hospital records indicated she was “prenatally drug
exposed,” which caused her to develop “‘an episode of apnea
investigation.” (In re Aurora P. (2015) 241 Cal.App.4th 1142,
1149, fn. 4.)
3 Mother’s full name is Brittany Alexandra M. B.
5
at 12 hours of age,’” and required a transfer to the Neonatal
Intensive Care Unit (NICU). Athena subsequently received
seven days of antibiotic therapy before discharge.
DCFS interviewed Mother, N.G., Harmony, and
Dominic. The relevant portions of their interviews are set
forth below.
1. Mother
The CSW spoke with Mother, who reiterated that she
had taken a Norco pill because she was suffering from back
pain, and again claimed not to have known she was
pregnant. Denying that she had ever used amphetamines,
she was unable to explain her positive test result. She
admitted to having “snorted powder” while at a gathering
with friends two nights earlier, but thought the powder was
cocaine; Mother claimed she had been using cocaine since
she was 19 or 20 years old, but only “‘here and there.’”
Mother denied any other drug use, but admitted some light
alcohol consumption.
Mother stated she could not care for Athena, as she
and Athena’s father had not been in a relationship for three
months. She reported the two had a “domestic violence
relationship,” and claimed he had physically struck her, and
was emotionally abusive.4
4 Gennie T., who helped Mother watch Demi, told the CSW
she, too, was aware of domestic violence between Mother and
Demi’s father.
6
When asked who currently lived with her, Mother
listed only her grandfather and her “niece,” Demi, whose
mother was someone with a drug problem who lived in Las
Vegas; Mother claimed she had cared for Demi for two years.
Mother also mentioned her cousin who was visiting from
Oregon. During a tour of the home, the CSW noticed a
second child’s bed in Demi’s room that appeared slept in, but
both Mother and the cousin denied that another child lived
in the home. When the CSW noticed artwork on the walls
that appeared to have been done by a child, the cousin stated
they were done by Harmony, the child of Mother’s brother.
As for the “older girl’s toys” the CSW observed, “[M]other
stated that the maternal uncle would bring over odd things.”
Later that day, the CSW learned from the medical
social worker that Mother was going to the hospital to have
Athena discharged against medical advice, and that Mother
was exhibiting “rapid speech.” When the CSW spoke with
Mother at the hospital, Mother claimed ignorance that
Athena had been suffering from breathing issues, finding it
suspicious that “all of a sudden” the infant was experiencing
complications. Eventually, Mother agreed not to remove
Athena from the hospital.
While at the hospital, the CSW encountered a friend of
Mother’s, who had also just given birth, and had come to see
Athena. This friend claimed that both she and Mother had
discovered they were pregnant at the same time, and they
“always talked about their pregnancy.” The friend surmised
that Mother may have been in denial due to being in an
7
abusive relationship. The friend identified Dominic as
Athena’s father, and opined that Harmony’s father was a
good person.
2. N.G. and Harmony
On September 29, 2020, the CSW visited with
Harmony’s father, N.G. N.G. reported that he had received
a phone call from Mother asking him to not say anything to
DCFS, and informing him that she had lied to the hospital
“about everything.” N.G. opined that Mother was “a huge
liar.” N.G. also reported that Mother had a drug problem,
explaining that she had lost a lot of weight, acted paranoid,
and ground her teeth. He claimed Harmony had walked in
on Mother smoking something in a pipe, and that Mother
would sleep through the day and force Harmony to care for
Demi. N.G. also reported that Harmony had seen Mother
and Dominic throw things at each other. N.G. claimed
Mother was bipolar, but did not take her medication. N.G.
was employed, had no mental health issues or domestic
violence history, and had no serious criminal record.
The CSW then spoke with eight-year-old Harmony who
confirmed she was Mother’s child and stated that she had
heard Mother and her friend discussing Mother’s pregnancy.
Harmony claimed Mother yelled at her every day and
required her to change and feed Demi. Harmony confirmed
that she walked in on Mother smoking “a thing that looks
like a water pipe” -- it had a part for Mother’s mouth, and
connected to a container. Harmony stated she had seen a
8
cloud of smoke come out of Mother’s mouth; the smoke was
odorless. Harmony reported that she had heard Mother and
Dominic throwing things at each other, and that the last
time it occurred, Harmony had cried and yelled at them to
stop. Harmony also reported she had heard Mother and
Dominic “hitting and smacking each other.” Harmony said
she liked living with her father, N.G. The CSW observed
that N.G’s home was “extremely clean and organized,” and
had working utilities and sufficient food.
3. Dominic
Dominic acknowledged knowing Mother was pregnant
with Athena, but did not believe the child was his.5 Dominic
stated that Mother was seeing other people, and in fact
asked him to watch Demi when she did so. When the CSW
reminded him there was a criminal protective order in place,
Dominic stated he would only go to see Demi. In discussing
how the protective order came into being, Dominic explained
that in 2019, Mother threw a water bottle at him, and he
threw it back, hitting her. Mother then called the police.
Dominic was arrested and the court ordered him to attend a
52-week domestic violence program. Dominic completed two
months of classes, but then lost his job and could not
continue. Dominic reported that he was arrested again four
months ago because Mother falsely claimed he had assaulted
her again. Nevertheless, Dominic was placed on summary
5 A DNA test later confirmed Dominic was the father.
9
probation and ordered to attend another 52-week domestic
violence program. He confirmed the criminal restraining
order was still in effect.6
Dominic claimed that Mother was the aggressor in
their relationship and recounted the August 2020 incident in
which she came to his house at 1:00 a.m. to attack him. She
had “rapid speech” and continually accused him of having
“‘my daughter in your mouth.’” Dominic’s mother confirmed
the incident, claiming she personally witnessed Mother
attacking Dominic, and that she had to spray Mother with a
hose to get her to stop. There was security footage of the
incident, but the lack of light prevented the CSW from
verifying that Mother was the person in the video. Dominic
claimed that Mother essentially stalked him, calling him
from 15 different phone numbers, showing up at a meeting
Dominic had with his friend, and threatening to come over to
his house. Dominic stated he did not know if Mother used
drugs, but both he and his mother stated it would explain
her “bizarre behaviors.” Dominic admitted that if he were to
drug test, there could be positive results for marijuana and
methamphetamine, which he had used “last week.”
C. DCFS Files a Petition
On September 30, 2020, the CSW spoke with Mother
and observed that she had “extreme rapid speech.” The
6 The CSW later confirmed that a second protective order
had been issued in September 2020, and would not expire until
2030.
10
CSW later received a call from the medical social worker,
stating Mother was again on her way to the hospital to
retrieve Athena against medical advice. In response, DCFS
placed a “Hospital Hold” on Athena. The next day, DCFS
obtained a removal order and removed Harmony from
Mother’s care, and Demi from Mother’s and Dominic’s care.
Harmony was placed with N.G., and Demi and Athena were
placed with their paternal aunt.
On October 5, 2020, DCFS filed a petition on behalf of
Harmony, Demi, and Athena, alleging counts under Welfare
and Institutions Code section 300, subdivisions (a), (b)(1),
and (j).7 Counts a-1 and b-3 identically alleged that Mother
and Dominic had a history of domestic violence, recounting
incidents from July 2018 through August 2020, and claiming
Mother failed to enforce a criminal protective order intended
to protect her from Dominic, instead permitting Dominic to
live with her and have unlimited access to the children.
Counts b-1 and j-1 identically alleged that Mother had a 12-
year history of substance abuse, and currently abused
cocaine, methamphetamine, amphetamine, and opiates,
rendering her incapable of caring for her children. DCFS
additionally alleged that Mother used drugs during her
pregnancy, tested positive on the day Athena was born, and
had previously been under the influence of illicit drugs while
caring for her children. Counts b-2 and j-2 identically
alleged that though Mother knew Dominic had a substance
7 At the time, Athena was known as “Baby Girl M[.]”
11
abuse problem, she permitted him to reside in her home and
have unlimited access to the children. Count b-4 alleged
Mother had mental and emotional problems that rendered
her unable to provide regular care for the children. The
court found prima facie evidence to continue the children’s
detention.
D. DCFS Continues Investigating
1. Mother
In November 2020, a dependency investigator (DI)
asked Mother if she would submit to drug testing that day.
Mother stated she would speak with her attorney, and would
agree only if the attorney advised her to do so. Mother
agreed to drug test the next day; the results were negative.
Two weeks later, the DI interviewed Mother
telephonically. When asked about the domestic violence
incidents, she discussed several incidents already known to
DCFS, but claimed her children were not present during any
of them. She later provided photographs of injuries she
claimed to have sustained from one such incident. She
disputed the allegation that Dominic had “unlimited access”
to the children, stating that if he was visiting them, she
would leave Demi with Dominic’s mother or sister. Mother
denied a drug abuse problem, stating she had used cocaine
only three times in her life. She admitted one of those times
was a few days before Athena’s birth, but continued to insist
she did not know she was pregnant until she went into
active labor. She denied use of methamphetamines or
12
narcotics, and stated she was willing to undergo random
drug testing.8 When asked about Harmony’s statements
regarding her drug use, Mother claimed Harmony was being
coached, and speculated that Harmony may have mistaken a
perfume bottle for drug paraphernalia. Mother again tested
negative for drugs on December 4, 2020.
Mother confirmed she had been diagnosed with bipolar
disorder around 2010-2011, and had been prescribed certain
psychotropic drugs which she took only for two weeks; she
stopped because she felt the dosage was too high. She
claimed that her psychiatrist subsequently assessed that she
no longer needed medication. She stated she was currently
in therapy and had not been prescribed a psychotropic
medication. In a last minute information DCFS provided to
the court in December 2020, a CSW noted that Mother often
texted “‘bizarre things,’” which raised “additional concerns
for mother’s mental health status,” and claimed it was
difficult to have a meaningful conversation with Mother
because she would “speak[] over” the CSW and become irate.
DCFS also noted that the caregiver for Demi and Athena no
longer wanted to monitor visits from Mother because Mother
“gets upset easily, uses foul language, and has displayed
disrespectful behaviors.” When DCFS spoke with Mother,
she would become upset and angry when concerns regarding
8 Mother also insisted that her grandfather’s prescribed pills
were not “narcotics,” and provided DCFS with a medication list to
support this. The list did not contain Norco.
13
the petition’s allegations were expressed. DCFS
characterized her behavior as “minimally cooperative.”
2. N.G.
N.G. reported that when he tried to keep Harmony
from Mother due to concerns about her behavior, Mother
initiated divorce proceedings and obtained the family law
custody order evenly splitting custody. N.G. elaborated on
his previous concerns that Mother was abusing drugs,
explaining that in addition to grinding her teeth and acting
paranoid, she also was incoherent at times, exhibiting
“awkward” or rapid speech. He reported that Mother’s
family members would call and ask N.G. to help her. N.G.
also elaborated on Mother’s mental health, stating that it
was “‘still an issue,’” that her emotions would “‘run high,’”
and that she would enter “‘depressive states.’”
3. Dominic
Dominic confirmed the August incident in which
Mother came to his mother’s house to attack him, but denied
other incidents of domestic violence. He claimed that photos
Mother had shown the police of injuries purportedly inflicted
by him were actually photos of injuries Mother had
sustained in a fight with a neighbor. However, he claimed
that it was too expensive for him to go to trial over the
criminal charges and so he “‘just took the deal.’” He
admitted throwing a water bottle at Mother in April 2019,
but claimed she had thrown it at him first. He stated that
the children were usually sleeping during his arguments
14
with Mother, and that while they may have heard the
arguments, they did not see anything. As to Mother’s drug
use, Dominic professed ignorance, stating he had only seen
her use marijuana. However, he reported noticing changes
in Mother’s behaviors after he moved out of her home, to the
point where he asked her, “‘what are you on?’” As to
Mother’s mental health issues, he stated he had never
thought about them, but had previously thought Mother
needed medication due to being “‘crazy.’”
4. Harmony
Harmony reiterated her previous statements that
Mother and Dominic threw things at each other, and
recounted an incident in which they threw beer cans at each
other. She stated she would often go into another room
when Mother and Dominic would engage in altercations, and
she could hear “‘the sound of hitting, like my mom throwing
stuff.’” She recalled another incident in which Dominic
borrowed Mother’s car and Mother retaliated by throwing all
of Dominic’s “DJ stuff” outside. During these arguments,
Demi was asleep or in Harmony’s room. Harmony also
expressed frustration at having to help care for Demi while
she was trying to do schoolwork. As to Mother’s drug use,
she repeated her statements about seeing Mother smoking,
and seeing “fog” in Mother’s bedroom. She added that the
“‘tube bottle’” she saw on Mother’s dresser was filled with
liquid.
15
E. Adjudication and Disposition
In December 2020, DCFS filed a last minute
information containing a screenshot of an electronic
conversation between N.G. and an individual named Randy
R., whom N.G. identified as Mother’s ex-boyfriend. Randy,
who did not regularly communicate with N.G., had reached
out to inform him that on November 23, Mother told Randy
she had used “synthetic” urine to test clean for drugs and
was smoking methamphetamine daily. N.G. stated he
received this message a week before Thanksgiving. The DI
attempted to contact Randy, but did not receive a call back.
Prior to the adjudication hearing, DCFS submitted an
amended petition, dismissing count a-1, amending counts b-
1, b-4, and j-1 to remove allegations that the children’s
fathers failed to protect them, and dismissing count b-2 (but
not count j-2). Count b-3 was also amended to allege that
Dominic had been convicted of inflicting injury on Mother,
and that Mother did not enforce a criminal protective order
requiring Dominic to stay away from Mother. Dominic pled
no contest to the amended petition.
Mother was the only witness to testify at the
adjudication hearing. She denied having mental health or
drug problems. She admitted lying to the hospital social
worker regarding how many children she had. She also
admitted to giving her name as Alexandra M. but insisted
that was in fact her name.
The court then heard argument. DCFS’s counsel asked
the court to sustain the amended petition as to Mother,
16
arguing that the court should credit the evidence of Mother’s
drug abuse (the hospital’s drug test, Harmony’s statements,
and the report that Mother was buying “clean” urine and
smoking methamphetamine daily) over Mother’s testimony
to the contrary, that Mother and Dominic had been in an
ongoing domestic violence relationship and continued to see
each other even though a criminal protective order had been
issued, and that Mother’s erratic behavior also was caused
by her mental health issues. The children’s counsel joined in
the argument made by DCFS’s counsel, raising other
instances in which Mother deceived DCFS. Mother’s counsel
asked the court to disregard any information about Athena’s
positive drug test (claiming she had been unable to obtain
it), and additionally argued there had been no evidence the
children were harmed by any of Mother’s alleged actions.
N.G.’s counsel noted that N.G. was no longer named in the
petition, and joined in the arguments of DCFS and the
children’s counsel. Dominic’s counsel stated that he had
nothing further to add as Dominic and DCFS had come to an
agreement.
The court sustained the amended petition as to
Mother. The court pointed to the evidence that Mother had
disregarded the criminal protective order preventing
Dominic from being near her; that Harmony had observed
the violence between the two, which impacted her; that
Mother tested positive for illicit substances and that
Mother’s drug abuse was corroborated by statements from
Harmony and N.G.; that Mother was not a credible witness;
17
and that Mother’s mental health issues were a cause of her
erratic behavior, which endangered the children. The court
therefore found the children were persons described by
Section 300(b)(1) and Section 300(j), and set a disposition
hearing for February 2021.
At the disposition hearing, DCFS’s counsel asked that
Harmony be released to N.G., but that jurisdiction not be
terminated. Counsel additionally requested the court
remove Demi and Athena from both parents and order them
suitably placed. The children’s counsel joined the argument
as to Demi and Athena, and additionally informed the court
it would not object to the termination of jurisdiction over
Harmony, if coupled with a family law order placing her
with N.G. Mother’s counsel opposed removing the children
from her, arguing that DCFS had failed to demonstrate they
would be in substantial danger in her care, and that there
were reasonable means short of removal to protect them,
such as unannounced DCFS visits, drug testing, and any
additional programs the court believed necessary. Her
counsel also argued that there was no evidence Mother
abused drugs, and that while using what she believed to be
cocaine was a mistake, Mother did not know she was
pregnant and potentially harming her child when she did so;
in any case, it did not place her children at risk. N.G.’s
counsel asked the court to terminate jurisdiction over
Harmony, and grant N.G. sole legal and physical custody,
pointing out that N.G. was non-offending, and that Harmony
18
had been in his care since the inception of the case with no
issues. Dominic’s counsel again made no argument.
On rebuttal, DCFS’s counsel informed the court it
would not object to terminating jurisdiction over Harmony,
stating it had observed Harmony with N.G. for five months
and noted no concerns. As for Mother, DCFS’s counsel
reminded the court that during her testimony, Mother had
denied using opiates, and that Mother had not agreed to
release her mental health information and so there was no
way to know what diagnoses she had recently received.
The court found Harmony to be a dependent of the
court, removed her from Mother, placed her with N.G., and
terminated jurisdiction over her, finding that the conditions
justifying the initial assumption of jurisdiction no longer
existed, and were unlikely to reoccur if supervision were
withdrawn. N.G. was granted sole physical custody while
both parents retained legal custody.9 After finding Demi and
Athena to be dependents of the court, the court removed
them from both parents, citing the facts found at the
jurisdiction hearing, and finding by clear and convincing
evidence that returning them to either parent would place
them in substantial danger, and that there were no
reasonable means short of removal to protect them. Mother
timely appealed.
9 This order was stayed until receipt of the Juvenile Custody
Order, which occurred in March 2021.
19
DISCUSSION
“On appeal, the ‘substantial evidence’ test is the
appropriate standard of review for both the jurisdictional
and dispositional findings.” (In re J.K. (2009) 174
Cal.App.4th 1426, 1433.) Under a substantial evidence
review, “‘we view the record in the light most favorable to
the juvenile court’s determinations, drawing all reasonable
inferences from the evidence to support the juvenile court’s
findings and orders. Issues of fact and credibility are the
province of the juvenile court and we neither reweigh the
evidence nor exercise our independent judgment.’” (In re
Joaquin C. (2017) 15 Cal.App.5th 537, 560.) “Evidence from
a single witness, even a party, can be sufficient to support
the trial court’s findings.” (In re Alexis E. (2009) 171
Cal.App.4th 438, 451.)
A. Substantial Evidence Supports the
Assumption of Jurisdiction
The court assumed jurisdiction under counts b-1, b-3,
b-4, j-1, and j-2. Mother contends substantial evidence does
not support assuming jurisdiction under any of these counts.
As set forth below, we conclude substantial evidence
supported the assumption of jurisdiction under counts b-1, b-
3, b-4, and j-1, and that Mother has forfeited any challenge
to jurisdiction under count j-2.
20
1. Counts b-1 and j-1 (Mother’s Substance
Abuse)
Mother argues that substantial evidence did not
support finding that she had a “12-year history” of substance
abuse, that she used “‘illicit drugs’” when Harmony and
Demi were in her care, or that the children were endangered
by any substance abuse. We disagree.
(a) Drug Abuse
Mother told a CSW she first used cocaine when she
was 19 or 20 years old. As she was born in 1989, her drug
use began in 2008 or 2009, 11 or 12 years before the petition
was filed. Though Mother claimed she used cocaine only
“here and there,” she snorted what she believed to be cocaine
two days before giving birth to Athena, even though an
abundance of evidence demonstrated she was fully aware of
her pregnancy. Her willingness to endanger Athena by
ingesting an illicit drug while pregnant suggests Mother’s
drug use was more than a casual habit.
Additionally, Harmony reported she saw a “‘tube
bottle’” on Mother’s dresser, saw Mother smoking what
appeared to be a water pipe, saw an odorless cloud of smoke
exit Mother’s mouth, and frequently saw “fog” in Mother’s
bedroom. Further, though Mother tested negative for drugs,
the court had evidence that Mother accomplished this by
purchasing “clean” urine while still smoking
methamphetamine on a daily basis. Numerous individuals
including N.G., Dominic, and DCFS personnel described
21
Mother’s “bizarre” behavior and rapid speech. We therefore
find that substantial evidence supported a finding that
Mother was abusing drugs. Mother’s citation to evidence
that could support finding she did not abuse drugs is merely
an improper request that we reweigh the evidence. (In re
Joaquin C., supra, 15 Cal.App.5th at 560.)
(b) Harm to the Children
Mother’s use of what she believed to be cocaine two
days before giving birth to Athena self-evidently endangered
Athena. Athena tested positive for methamphetamines at
birth, and her prenatal exposure to the drug caused “‘an
episode of apnea at 12 hours of age,’” requiring a transfer to
the NICU.
Moreover, a child’s ingestion of drugs constitutes
serious physical harm, and jurisdiction under Section
300(b)(1) is warranted if substantial evidence supported a
finding that the parent placed the child at substantial risk of
ingesting drugs. (In re Rocco M. (1991) 1 Cal.App.4th 814,
825.) Rocco M. listed “four distinct ways” in which a parent
could place a child at risk of ingesting drugs: “(1) by placing
or leaving drugs in a location or locations where they were
available to [the child]; (2) by frequent and prolonged
absences which created the opportunity for [the child] to
ingest the drugs; (3) by neglecting [the child]’s needs in a
way which might be reasonably expected to create the kind
of emotional and psychological conditions in which substance
abuse typically thrives; and (4) by exposing [the child] to her
22
own drug use, thus impliedly approving such conduct and
even encouraging him to believe that it is an appropriate or
necessary means of coping with life’s difficulties.” (Ibid.)
Here, Harmony personally witnessed Mother use
drugs, and knew Mother’s “‘tube bottle’” was on her dresser.
Harmony also complained that she frequently had to stop
doing homework to care for Demi because Mother was
otherwise occupied. Nothing in the record suggests Mother
intended to curtail her drug habit; to the contrary, she
refused to acknowledge her drug problem. “One cannot
correct a problem one fails to acknowledge.” (In re Gabriel
K. (2012) 203 Cal.App.4th 188, 197.) On this record, we find
the court did not err in assuming jurisdiction based on
Mother’s substance abuse, because substantial evidence
supported a finding that drugs would be “available” to the
children, that drugs caused Mother to neglect her children’s
needs, and that Mother exposed the children to her drug
use.10
10 Mother’s cases to the contrary are distinguishable. (In re
Rebecca C. (2014) 228 Cal.App.4th 720, 722, 727-728 [court erred
in finding children were at risk from Mother’s “relapse” into drug
use when Mother admitted to the problem and immediately
enrolled in and completed substance abuse program]; In re Drake
M. (2012) 211 Cal.App.4th 754, 767 [court erred in finding
jurisdiction due to Father’s use of marijuana, absent evidence
Father was under the influence when caring for child]; In re
Destiny S. (2012) 210 Cal.App.4th 999, 1004 [court erred in
finding jurisdiction when child had never seen Mother’s drug use,
and only potential harm was from child occasionally smelling the
(Fn. is continued on the next page.)
23
2. Count b-3 (Domestic Violence)
While Mother admits that she and Dominic engaged in
at least five altercations over a three-year period, and that
Harmony heard these altercations, Mother objects both to
the finding that there was a “history” of domestic violence,
and that any such history endangered the children. We
decline to engage in the semantic debate of whether five
incidents over three years constitutes a “history.” Instead,
we examine whether substantial evidence supported the
court’s finding that what domestic violence did occur posed a
substantial risk to the children.
In In re Heather A. (1996) 52 Cal.App.4th 183, our
colleagues in Division Three found that five incidents of
domestic violence occurring in the same house as the
children warranted jurisdiction under Section 300(b)(1)
because “domestic violence in the same household where
children are living is neglect; it is a failure to protect [the
children] from the substantial risk of encountering the
violence and suffering serious physical harm or illness from
it. Such neglect causes the risk.” (Id. at 194.) “Domestic
violence impacts children even if they are not the ones being
physically abused, ‘because they see and hear the violence
and the screaming.’” (In re T.V. (2013) 217 Cal.App.4th 126,
134.) We agree.
resultant smoke]; In re David M. (2005) 134 Cal.App.4th 822, 829
[no evidence Mother’s drug use harmed children in any way].)
24
While Harmony did not see the domestic violence, she
was present when it occurred. She stated that when Mother
and Dominic began fighting, she would go into another room
-- meaning that the fighting started while she was in the
same room. She also reported that she would hear Mother
and Dominic throwing things at each other, and “hitting and
smacking each other.” Indeed, the child was so upset by the
altercations that she would cry and tell them to stop. It is
therefore reasonable to conclude that, as Demi and Athena
got older, they, too, would become aware of the violence that
was occurring, and that all the children would be at
substantial risk of seeing, hearing, and being injured by the
domestic violence between Mother and Dominic.
3. Count b-4 (Mental Health)
Though Mother admitted to being diagnosed with
bipolar disorder in 2010 or 2011, to having been prescribed
psychotropic medication which she stopped taking, and to
currently being in therapy, she nevertheless argues that
substantial evidence did not support finding that “a 10-year-
old self-reported medical diagnosis of bipolar rendered
Mother unable to provide regular care for her children.”
In fact, there was more. The evidence demonstrated
that Mother’s mental health issues persisted beyond her
earlier diagnosis. N.G. reported that Mother’s mental health
was “‘still an issue’”; her emotions would “‘run high’” and she
would enter “‘depressive states.’” Dominic characterized
Mother’s behavior as “‘crazy’” and requiring medication.
25
DCFS personnel commented on Mother’s rapid speech,
“bizarre” texts, and erratic behavior.
Mother’s behavior throughout the case was also
worrisome. She had gone to Dominic’s house in the middle
of the night to attack him, yelling about Dominic having her
daughter in his mouth. In her initial contact with DCFS,
she pretended that Demi and Harmony were her nieces, not
her daughters. Hours after giving birth to Athena, Mother
checked out of the hospital in the middle of the night,
leaving Athena there. And most troubling, Mother tried
twice to have Athena discharged against medical advice,
requiring DCFS to place a “Hospital Hold” to protect the
infant. On this record, we find the court did not err in
concluding that Mother’s mental health issues placed her
children at substantial risk of harm.
4. Count j-2 (Failure to Protect from
Dominic’s Substance Abuse)
Mother argues the court erroneously assumed
jurisdiction under count j-2 because “[t]he purported factual
basis” for counts j-1 and j-2 was “simply a restatement of the
300(b) allegations set forth above and does not support the
jurisdictional finding.” To the extent Mother intends to
incorporate her challenges to counts b-1, b-3, and b-4, we
note that count j-2 was a restatement of dismissed count b-2,
26
which Mother does not address on appeal.11 Moreover, as set
forth above, we have rejected her arguments that the court
erred in taking jurisdiction under counts b-1, b-3, and b-4. If
Mother seeks to raise an independent challenge to count j-2,
she has failed to develop this argument, and we find it
forfeited. (See, e.g., WFG National Title Ins. Co. v. Wells
Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894 [“we may
disregard conclusory arguments that are not supported by
pertinent legal authority”]; Allen v. City of Sacramento
(2015) 234 Cal.App.4th 41, 52 [“We are not required to
examine undeveloped claims or to supply arguments for the
litigants”].)
B. Substantial Evidence Supports the Removal
of the Children from Mother
Mother argues that substantial evidence fails to
support the finding that the children would have been at
substantial risk of harm if returned to her care. She notes
that she had tested negative for drugs, that any visits
between Dominic and the children were already monitored
by DCFS, and that she had completed a parenting class and
a domestic violence class. She further argues the court erred
by not considering reasonable alternatives to removal, such
as ordering her to drug test, ordering that Dominic not
11 Counts b-2 and j-2 alleged that Dominic had a history of
substance abuse and had cared for the children while under the
influence, and that Mother knew of this problem but nevertheless
permitted Dominic to live with and care for the children.
27
reside with her, and ordering that any visitation with
Dominic take place in a monitored setting at DCFS.
As discussed above, substantial evidence supported the
finding that Mother’s actions placed the children at
substantial risk of harm. Even with the heightened
standard by which the court made findings at the disposition
hearing, we find the same evidence supported its
conclusions. Mother’s citation to potentially contrary
evidence is again an improper request that we reweigh the
evidence. (In re Joaquin C., supra, 15 Cal.App.5th at 560.)
Substantial evidence similarly supported the court’s
determination that there were no reasonable means by
which removal could have been avoided. As discussed above,
not only did the court find Mother’s testimony regarding her
drug use not credible, there was also substantial evidence
that Mother was cheating on her drug tests using purchased
urine. Therefore, the court reasonably could have concluded
that ordering Mother to drug test would neither ensure she
was not abusing drugs, nor prevent her from storing drugs in
locations accessible to the children. Moreover, Mother’s
actions throughout the DCFS investigation were replete
with deception, and she admittedly disregarded a criminal
protective order intended to keep her and Dominic apart.
DCFS characterized her behavior as “minimally
cooperative.” The court had no reason to believe Mother
would obey an order that she and the children refrain from
visiting Dominic in an unmonitored setting. We conclude
the court did not err in failing to consider alternative means.
28
C. The Court Did Not Err in Awarding N.G.
Sole Physical Custody of Harmony
Mother contends it was an abuse of discretion to award
sole physical custody of Harmony to N.G. based on her
failure to make sufficient progress in programs that the
court had just ordered Mother to attend. We reject the
premise of Mother’s argument. Nothing in the record
indicates the court awarded sole physical custody to N.G.
due to insufficient progress in court-ordered programs.12
Nor do we discern an abuse of discretion -- it is undisputed
that N.G. was a non-offending parent, that Harmony stated
she was happy living with him, and that DCFS noted no
concerns with his parenting of Harmony and did not object
to the court awarding him sole physical custody.
Furthermore, as discussed above, the court had just
concluded that Harmony would be at substantial risk if
released to Mother. We therefore find reasonable the court’s
decision to award sole physical custody of Harmony to N.G.
12 The court ordered that Mother’s visitations with Harmony
be monitored because she had not made substantial progress in
court-ordered programs, but Mother does not contend the court
erred in ordering monitored visitation.
29
DISPOSITION
The court’s orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
30