In re S.S. CA2/7

Filed 6/23/21 In re S.S. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re S.S. et al., Persons Coming B309447
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 19CCJP07386A-B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
VERONICA O.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Steff R. Padilla, Juvenile Court Referee.
Reversed.
Katie Curtis, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter Ferrera, Principal Deputy
County Counsel, for Plaintiff and Respondent.
____________________________________
INTRODUCTION
Veronica O., mother of now four-year-old S.S. and two-year-
old G.S., appeals from the juvenile court’s jurisdiction findings
and disposition order removing the children from her care and
placing them under the supervision of the Los Angeles County
Department of Children and Family Services. Veronica argues
that substantial evidence did not support the court’s jurisdiction
findings under Welfare and Institutions Code section 300,
subdivision (b),1 and that we must therefore reverse them along
with the disposition order. We agree and do.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Department Files a Section 300 Petition, and the
Juvenile Court Holds a Detention Hearing
On November 13, 2019, as part of a narcotics investigation,
Detective Yanez of the Los Angeles County Sheriff’s Department
was surveilling a motel when he saw Sesar Uribe exit one of the
rooms with “a white paper bag” in his hand, get into a parked car,
and drive away. Detective Yanez had a warrant to search Uribe,
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
and he contacted other sheriff’s deputies with instructions to pull
Uribe over. They did so, and when Detective Yanez arrived on
the scene, one of the deputies showed him “a white plastic bag”
containing “a large quantity” of methamphetamine Uribe had
tossed from the car before he was pulled over. Detective Yanez
questioned Uribe, who stated that he had spent the past two
nights in the room at the motel, that he had no drugs or weapons
there, and that the deputies were welcome to search the room.
The deputies arrested Uribe, who later admitted he had been
selling methamphetamine for the previous 10 months.
On returning to the motel room, the deputies encountered
Veronica, S.S., and G.S. Asked if she was staying in the room,
Veronica answered, “Yes, me and my kids stayed here last night
with my friend Sesar because I had nowhere to go.” Asked if
there were any illegal drugs or weapons in the room, she said, “I
don’t know.” The deputies found no drugs or weapons in the
room, but they did learn Veronica had an outstanding arrest
warrant, issued in September 2016, for absconding from
probation after a conviction for identity theft. The deputies
arrested Veronica, took the children into protective custody, and
transported all three to the station.
A Department social worker, Ava Vivar, met the deputies
at the station and interviewed Veronica. Veronica told Vivar that
she and her children were currently homeless and that the
children’s father, Gilbert S., was incarcerated in Oregon. She
said that she and the children had previously lived with Gilbert’s
mother, Lucy S., but that they had moved out because Veronica
“wanted to move on with her life.” Veronica stated that Uribe
was a longtime friend, that they had no romantic relationship,
and that, aware of her “living situation,” he allowed her and the
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children to stay one night with him at the motel. She denied any
prior knowledge of the drugs the deputies recovered from Uribe
and stated that she did not see any drugs or drug paraphernalia
in the motel room and that she and the children had never ridden
in Uribe’s car. Veronica said she had last used drugs “a long time
ago” and agreed to contact the Department for drug testing on
her release from custody. Vivar informed Veronica the
Department intended to detain S.S. and G.S. because no parent
was available to care for them.
Vivar also interviewed Uribe. He stated that he and
Veronica had been friends for more than 10 years, that they did
not have a romantic relationship, and that, running into her the
day before his arrest and learning she and her children were
homeless, he let them sleep in his motel room for one night. It
was no inconvenience to him, he explained, “as he was hardly
ever in his room.” He insisted that Veronica did not know about
the methamphetamine in his possession and that he kept them in
his car and did not bring them into the room. He admitted he
had smoked methamphetamine for the last four years, including
the day before his arrest, but denied smoking it in the motel room
or around S.S. and G.S.
Having detained S.S. and G.S. and placed them with Lucy,
the Department filed a petition under section 300,
subdivision (b)(1), alleging in a single count (b-1) that Veronica
“created a detrimental and endangering home environment for
the children in that [she] allowed . . . Uribe, who is a Registered
Controlled Substance Offender and a current user of
methamphetamine, to reside in the children’s home and to have
unlimited access to the children.” In its detention report the
Department stated that Gilbert was incarcerated in Oregon in
4
connection with, among other crimes, possessing and delivering
methamphetamine and that his earliest release date was
December 8, 2021.
The detention report also stated the Department had
received a referral concerning Veronica when she gave birth to
G.S. in February 2019. The referral source expressed concerns
because Veronica had admitted a history of methamphetamine
use and tested positive for methamphetamine during a prenatal
examination in September 2018. G.S., however, “tested negative
for all drugs,” and Veronica “tested negative for all substances”
nine days after G.S. was born, at which time Veronica stated she
“had been sober for five to six years.” The Department concluded
at that time there was no evidence to support intervention.
The detention report also included statements from an
interview with Lucy. Lucy stated that Veronica had lived with
her for three years before moving out in March 2019. She stated
that Veronica said she was moving in with a friend whose mother
had Alzheimer’s, to work as the mother’s caretaker, but also that
Veronica moved out because she “did not like all of [Lucy’s]
rules.” Veronica later told Lucy that the arrangement with the
friend did not work out and that Veronica was now homeless, but
that she was receiving motel vouchers from a church and
expected to receive additional housing assistance. Veronica also
told Lucy that Veronica’s social worker suggested Veronica “‘find
someone in a similar situation to share a room’” with and that, by
following that advice, she and the children spent the night with
Uribe in the motel.
Lucy also reported that, although Veronica no longer lived
with her, Veronica visited her “on a daily basis” and S.S. “always
ate in her home.” Lucy denied ever seeing Veronica under the
5
influence of drugs or in possession of drugs or drug
paraphernalia. Lucy did state “she had concerns about possible
drug use” by Veronica, and when asked why, she said Veronica
smoked cigarettes and she (Lucy) believed “cigarettes were
gateways to drugs.” Lucy stated that she had no “concerns
regarding neglect of the children by [Veronica]” and that
Veronica “simply . . . needed to be more organized with the
children.”
At the detention hearing in November 2019, counsel for
Veronica stated that, “when [Veronica] is released, she does want
to be drug testing for the Department.” The juvenile court found
the Department made a prima facie case the children were
persons described by section 300 and ordered their continued
detention. The court also ordered “parenting referrals, drug and
alcohol counseling, and testing referrals.” The court asked
Veronica, “What’s your rap sheet look like?” Veronica mentioned
the warrant for identity theft and then said, “I think it was
driving without owner’s consent. It was a long time ago 2013 or
2011—something like that.” The court ordered, “Drug and
alcohol testing—counseling and testing.” The minute order from
the hearing stated: “Mother to receive referrals for parenting,
drug testing and counseling.”
B. The Department Files an Amended Petition and a
Jurisdiction and Disposition Report
In January 2020 the Department filed an amended
petition, adding two new counts under section 300,
subdivision (b)(1). Count b-2 alleged Veronica “has a history of
use of illicit substances, that includes a history of arrests for
controlled substances, and having had positive test for
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methamphetamines when pregnant with [G.S.] In addition,
[Veronica] has a recurrent close affiliation with people who abuse
methamphetamines that has included [Gilbert], and most
recently with unrelated male friend, Sesar Uribe. [Veronica] has
placed the children at risk of harm in that the police arrested
Sesar Uribe at the children’s home on 11/13/19, during which Mr.
Uribe was admitted to having used methamphetamines the night
prior to his arrest and methamphetamine[ ] was found in his
vehicle parked outside the motel residence where [Veronica] and
the children were staying with Mr. Uribe.” Count b-3 alleged
Gilbert “has a history of substance abuse, and is a recent user of
the methamphetamines. [He] recently suffered a drug relapse
and is presently serving a prison sentence for drug-related
offences.”
The Department also filed a jurisdiction and disposition
report stating that Veronica and Gilbert remained incarcerated,
but that Veronica expected to be released in February 2020. The
Department reported Veronica was arrested four times in 2013
on drug-related charges: in May 2013 for possessing a controlled
substance, possessing a controlled substance while armed, and
being under the influence of a controlled substance; in September
2013 for possessing a controlled substance and bringing a
controlled substance into a prison; in December 2013 for
possessing a controlled substance for sale, though she was
released on that occasion for lack of evidence; and again in
December 2013 for possessing controlled substance
paraphernalia. In August 2015 a warrant for Veronica was
issued in connection with, among other things, pending drug-
related charges. In December 2015 she was arrested on the
warrant and for, among other things, possessing a controlled
7
substance for sale.2 The Department reported Gilbert had a
number of (undated) convictions for drug-related offenses.
The Department also reported that in a January 2020
interview, referring to her decision to move out of Lucy’s home in
March 2019, Veronica stated “she realizes she made poor choices
by choosing to leave and later choosing to not return to [Lucy’s]
residence where she said was always available to her and safe for
the children, given she had limited means.” Veronica also
suggested the referral indicating she tested positive for
methamphetamine while pregnant with G.S. was “inaccurate.”
The Department also interviewed Gilbert in January 2020.
He stated Veronica “told him of the people she had started to
hang out with following his recent incarceration, and said he
tried to dissuade her from keeping company with such people
because of the drug related activities.” He also said that he asked
Veronica whether she was using drugs and that she answered no.
He said that he had never known Veronica to use
methamphetamine, but that she “used to drink alcohol
excessively” before having S.S. and G.S. Gilbert’s expected
release date of December 8, 2021 remained unchanged.
C. The Juvenile Court Sustains the Petition and
Removes the Children
In January 2020 the juvenile court held a jurisdiction
hearing, which it continued, ultimately, to March 10, 2020. In
the meantime, Veronica was released from custody (on
2 It is unclear from the record how the drug-related charges
against Veronica were resolved.
8
February 6, 2020).3 At the hearing the court sustained the
petition, finding count b-2 true as alleged, finding count b-3 true
after striking the allegation that Gilbert “recently suffered a drug
relapse,” and dismissing count b-1.
Regarding count b-2, the court stated: “Mother was . . .
arrested that day for a no-bail warrant for identity theft. Mother
has an extensive history of arrests and convictions for theft and,
as I indicated, an arrest warrant for failure to appear on identity
theft as well as controlled substances. She then—[Gilbert], who
is the presumed father of the children is—was engaged in
narcotics offenses which is why he is in prison, and then she
expects—well, the court finds by a preponderance of the evidence
that she is now with a second gentleman who has been arrested
for drugs. There’s way too much drugs around these children.
And therefore the court finds b-2 is found to be true by a
preponderance of the evidence. Mother’s around drugs. She
makes her children [sic] around drugs, and she’s around people
who have drugs. That is a risk. They don’t have to actually
ingest it. The court’s concerned about the lack of judgment.” At
the conclusion of the hearing, the court asked Veronica, “Are you
testing?” Veronica answered, “Yes.” The court responded, “Good.
Let’s see those results.”
After a number of continuances because of the COVID-19
pandemic, the court held a disposition hearing on October 30,
2020. In the meantime, the Department filed several last minute
information reports, which stated Veronica had “not provided the
3 The Department reported Veronica “declined to utilize the
referral provided to her by [the Department] and by a local
church,” choosing instead to sleep in her car.
9
Department with any letters of enrollment for any Court ordered
program,” was a “No Show” for drug tests on July 8, July 24,
September 30, and October 6, 2020,4 and maintained “she was
not going to drug test as the Court had not ordered her to do so.”
At the disposition hearing the Department and counsel for
the children asked the court to remove the children. Counsel for
Veronica asked the court to place the children with Veronica on
the condition she comply with the case plan and live in Lucy’s
home. Counsel for Veronica addressed the Department’s report
that Veronica was not participating in services: “I would note
that [Veronica] has not been ordered to do any services. She was
not ordered to drug test. So I disagree with the [Department]
that she is noncompliant, as she is not currently in violation of
any court orders . . . . ” Counsel added that Veronica
“understands on this court date the court can order her to
participate in services.” The court declared the children
dependents of the court and removed them from Veronica and
Gilbert. Veronica timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
“Section 300, subdivision (b)(1), authorizes a juvenile court
to exercise dependency jurisdiction over a child if the ‘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
4 The Department reported that one of its social workers
spoke with Veronica on July 1, 2020 and “placed [her] on random
drug testing on this date[ ] and sent [her] a follow-up email with
drug testing information.”
10
inability of his or her parent . . . to adequately supervise or
protect the child, or . . . by the inability of the parent . . . to
provide regular care for the child due to the parent’s . . . mental
illness, developmental disability, or substance abuse.’ [Citation.]
A jurisdictional finding under section 300, subdivision (b)(1),
requires [the Department] to demonstrate the following three
elements by a preponderance of the evidence: (1) neglectful
conduct, failure, or inability by the parent; (2) causation; and
(3) serious physical harm or illness or a substantial risk of
serious physical harm or illness.” (In re L.W. (2019)
32 Cal.App.5th 840, 848; see In re Joaquin C. (2017)
15 Cal.App.5th 537, 561.)
“In deciding whether there is a substantial risk of serious
physical harm, within the meaning of section 300, subdivision (b),
courts evaluate the risk that is present at the time of the
adjudication hearing. ‘While evidence of past conduct may be
probative of current conditions, the question under section 300 is
whether circumstances at the time of the hearing subject the
minor to the defined risk of harm.’” (In re Roger S. (2018)
31 Cal.App.5th 572, 582; In re J.N. (2021) 62 Cal.App.5th 767,
775 [child protective agency “must establish a nexus between the
parent’s past conduct and the current risk of harm”].)
“In reviewing a challenge to the sufficiency of the evidence
supporting jurisdictional findings . . . , we ‘consider the entire
record to determine whether substantial evidence supports the
juvenile court’s findings.’ [Citations.] ‘Substantial evidence is
evidence that is “reasonable, credible, and of solid value”; such
that a reasonable trier of fact could make such findings.’” (In re
L.W., supra, 32 Cal.App.5th at p. 848.) In reviewing for
substantial evidence, “a reviewing court should ‘not reweigh the
11
evidence, evaluate the credibility of witnesses, or resolve
evidentiary conflicts.’” (In re Caden C. (2021) 11 Cal.5th 614,
640.) “The appellant has the burden of showing there is no
evidence of a sufficiently substantial nature to support the
findings . . . .” (In re E.E. (2020) 49 Cal.App.5th 195, 206.)
B. Substantial Evidence Did Not Support the
Jurisdiction Finding Relating to Veronica
Veronica contends the juvenile court erred in finding her
conduct caused the children to suffer, or to be at substantial risk
of suffering, serious physical harm, as alleged in count b-2. She
argues that there is no substantial evidence she placed the
children at risk of physical harm by staying with them for one
night in the motel room with Uribe and that, even if there were,
there is no substantial evidence any such risk remained at the
time of the jurisdiction hearing.5 We agree with her, at a
minimum, on the latter point.
The parties wrangle over the “white paper bag” Deputy
Yanez observed in Uribe’s hand as Uribe left the motel room on
November 13, 2019. The Department argues the juvenile court
could reasonably infer that it was the same “white plastic bag”
full of methamphetamine the sheriff’s deputies later recovered
from Uribe and that Veronica had allowed her children to stay
the night in a motel room where Uribe “possessed and used
methamphetamine.” The Department argues “[i]t is well settled
that allowing children to be in proximity to drugs and drug
paraphernalia places them at substantial risk of serious physical
harm,” and for that proposition it cites (only) People v. Perez
5 The Department has never contended the children suffered
actual physical harm or illness as a result of Veronica’s conduct.
12
(2008) 164 Cal.App.4th 1462 (Perez). Veronica argues that
Deputy Yanez deliberately distinguished the “paper” bag Uribe
left the motel room with from the “plastic” bag of drugs the
deputies later recovered, that all the other evidence showed
Uribe kept the drugs in his car and did not take them into the
motel room or near the children, and that there was no evidence
Uribe used drugs inside the motel room or in the presence of the
children.
There are two problems with the Department’s argument.
First, the court’s holding in Perez, supra, 164 Cal.App.4th 1462was not as broad as the Department advertises. In that case,
where a defendant was convicted of willfully endangering the
health of a child (Pen. Code, § 273a, subd. (b)), the court found
there was substantial evidence to support “the element of
willfully causing or permitting [the child] to be placed in a
situation in which her safety was endangered.” (Perez, at
p. 1472.) Citing undisputed evidence that heroin and liquid-filled
syringes lay on various two-foot-high and four-feet-high surfaces
in a house where a four-year-old regularly visited, the court found
“the jury could have reasonably concluded that leaving drugs and
drug paraphernalia in plain view and/or within easy access of a
four-year-old child placed that child at unreasonable risk of her
personal safety.” (Id. at p. 1473.) The circumstances here were
distinguishable: Even assuming Uribe took a bag of drugs into
the motel room for some period on the night in question, there is
no evidence G.S. and S.S., who were nine months old and two
years old, respectively, at the time, could easily access the drugs
or were otherwise physically endangered by their “proximity.”
Second, even assuming Veronica placed the children at
substantial risk of physical harm by allowing them to stay one
13
night in a motel room with Uribe and his drugs, there is no
evidence any such risk remained at the time of the jurisdiction
hearing. Nothing in the record suggests that Veronica had ever
previously shared a motel room or other “residence” with Uribe,
that she ever would again, or that Veronica, Gilbert, or anyone
else ever kept drugs in the children’s proximity. The Department
does not even argue there was any such evidence.
In fact, the Department’s argument here is essentially that,
at the time of the jurisdiction hearing, the children were at
substantial risk of physical harm because of what the
Department variously describes as Veronica’s “long-standing
association with illegal drugs,” “associating with people known to
be involved with drugs,” and “longstanding and ongoing
association with illegal drugs and people who used and sold
them.” But an ill-advised “association” is not, without more, a
basis for juvenile court jurisdiction. The Department “‘has the
burden of showing specifically how the minor[ ] ha[s] been or will
be harmed’” (In re J.N., supra, 62 Cal.App.5th at p. 775), which
requires showing “an actual nexus” between the parent’s conduct
“and any specifically identified, substantial, current risk of
serious physical harm” (ibid.) to the child. Repetitious
incantations of Veronica’s “association” with illegal drugs do not
satisfy that requirement. (See id. at p. 776 [“although we
acknowledge that, on an abstract level, violent crime is
incompatible with child safety, [the Department] cannot use such
generalities to satisfy its burden of proving an ‘identified, specific
hazard in the child’s environment’ that poses a substantial risk of
serious physical harm to him”].)
Finally, the Department suggests Veronica’s positive drug
test while pregnant with G.S., coupled with her subsequent
14
denial of the accuracy of that test result, constitutes substantial
evidence to support the true finding on count b-2. But that
evidence does not support the true finding on count b-2 because
nothing in count b-2, or anywhere else in the amended petition,
alleged any risk of harm to the children as a result of Veronica’s
drug use. Nor did the Department make that argument at the
jurisdiction hearing. “‘“[N]otice of the allegations upon which the
deprivation of custody is predicated is fundamental to due
process. [Citations.] Accordingly, a parent must be given notice
of the specific factual allegations against him or her with
sufficient particularity to permit him or her to properly meet the
charge.”’” (In re S. O. (2002) 103 Cal.App.4th 453, 460; see In re
Jessica C. (2001) 93 Cal.App.4th 1027, 1036-1037.)
C. Substantial Evidence Did Not Support the
Jurisdiction Finding Relating to Gilbert
We also agree with Veronica that the juvenile court erred
in sustaining the petition based on Gilbert’s conduct as alleged in
count b-3. The Department does not attempt to identify any
actual nexus between Gilbert’s conduct and a specifically
identified, substantial, current risk of physical harm to the
children. The Department argues only that Gilbert’s “criminal
history demonstrates his serious, unresolved decades-long
problem with illegal drugs” and that a “parent’s substance abuse
is prima facie evidence of substantial risk to children of tender
years who require adequate supervision,” a proposition for which
it cites In re Drake M. (2012) 211 Cal.App.4th 754 (Drake M.).
But that argument is unpersuasive.
The court in Drake M. explained that “‘[c]ases finding a
substantial physical danger tend to fall into two factual patterns.
15
One group involves an identified, specific hazard in the child’s
environment—typically an adult with a proven record of
abusiveness. [Citations.] The second group involves children of
such tender years that the absence of adequate supervision and
care poses an inherent risk to their physical health and safety.
[Citations.]’ [Citation.] And we also hold that, in cases involving
the second group, the finding of substance abuse is prima facie
evidence of the inability of a parent or guardian to provide
regular care resulting in a substantial risk of physical harm.”
(Drake M., supra, 211 Cal.App.4th at pp. 766-767; see In re
Christopher R. (2014) 225 Cal.App.4th 1210, 1219 [“because the
children were six years old or younger at the time of the
jurisdiction hearing—children of ‘tender years’ in the language of
[In re Rocco M. (1991) 1 Cal.App.4th 814]—‘the finding of
substance abuse is prima facie evidence of the inability of a
parent or guardian to provide regular care resulting in a
substantial risk of harm’”].)
The presumption the Department invokes from the holding
in Drake M. applies, then, when the juvenile court has made a
“finding of substance abuse.” (Drake M., supra, 211 Cal.App.4th
at p. 767; see In re Kadence P. (2015) 241 Cal.App.4th 1376, 1385;
In re Christopher R., supra, 225 Cal.App.4th at p. 1219.) But the
juvenile court here did not make a finding of current substance
abuse by Gilbert and, in sustaining count b-3, even struck the
allegation Gilbert had “recently suffered a drug relapse.” (Cf.
In re Christopher R., at pp. 1214, 1219 [applying the presumption
where the juvenile court found that the mother of children less
than six years old was “a current abuser of cocaine” whose
“substance abuse endangers” the children].) Thus, the
presumption does not apply.
16
And even if it did, it was rebutted by the absence of any
evidence Gilbert ever cared for or supervised the children while
under the influence of drugs. (See In re Rebecca C. (2014)
228 Cal.App.4th 720, 728 [rejecting the argument that, “when a
parent engages in substance abuse, dependency court jurisdiction
is proper”]; cf. In re Christopher R., supra, 225 Cal.App.4th at
p. 1219 [mother “did not adequately rebut” the juvenile court’s
substance abuse finding, where “her use of cocaine during the
last months of her pregnancy confirmed her poor judgment and
willingness to endanger her children’s safety due to substance
abuse”].) Indeed, the Department cites no evidence he ever cared
for or supervised them when sober. Of course, from at least some
point in 2018, when Gilbert was arrested and incarcerated in
Oregon, until at least December 8, 2021, the date of his expected
release, he could not and cannot.6
6 Because we are reversing the jurisdiction findings, we also
reverse the disposition orders. (See In re Roger S., supra,
31 Cal.App.5th at p. 583 [“Because there was no basis for
dependency jurisdiction, we also reverse the disposition order and
the custody order the juvenile court issued.”].)
17
DISPOSITION
The juvenile court’s jurisdiction findings and disposition
order are reversed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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