In re Leeann T. CA2/3

Filed 2/10/22 In re Leeann T. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re LEEANN T., a Person Coming B311593
Under the Juvenile Court Law.
_____________________________________
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. 20CCJP06584A)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
MICHAEL T.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Nichelle L. Blackwell, Commissioner. Affirmed.
Anne E. Fragasso, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sarah Vesecky, Deputy County
Counsel for Plaintiff and Respondent.
_________________________
Michael T. (father) challenges the juvenile court’s
jurisdiction and disposition orders as to his infant daughter,
Leeann T. Father contends the juvenile court erred by (1) finding
that father’s conduct created a risk of harm to Leeann,
(2) removing Leeann from father’s custody, and (3) ordering
father to drug test. We find no error, and thus we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Leeann’s Positive Drug Test at Birth; DCFS’s
Involvement With the Family
Leeann came to the attention of the Los Angeles County
Department of Children and Family Services (DCFS) when she
and her mother, Melissa H. (mother), tested positive for opiates
and methadone at Leeann’s birth in November 2020.1 The
hospital confirmed mother’s positive test two days later, but it
was unable to retest Leeann because father refused to consent. A
hospital nurse reported that Leeann had been jittery and was not
eating much.
Mother’s medical records indicated that she had been seen
for prenatal care only twice, and she had tested positive for
marijuana, methadone, and opiates on September 30.
Father told a children’s social worker (CSW) that mother
previously had “dabbled” with drugs but had stopped using when
she found out she was pregnant. Mother was receiving
methadone through a drug treatment clinic, but father would not
disclose what kinds of drugs mother had used in the past or say
whether he used drugs or had a criminal history. Father said he
would drug test only if ordered to do so by a court, and he refused
1 All subsequent dates are in 2020 unless otherwise
indicated.
2
to sign a safety plan, although he said he would do what the plan
required. Father also declined to allow the CSW to conduct a
home visit prior to discharge, and said he would make a “civilian
arrest” if anyone kept him from bringing his child home.
The CSW attempted to speak to mother in the hospital but
was prevented from doing so by father, who came out of mother’s
hospital room, told the CSW to walk outside with him, and said
mother could not speak to the CSW because she had just taken a
Norco. The hospital social worker, too, had been unable to
interview mother because father insisted on being present and
then did not allow mother to speak freely. The hospital social
worker said father frequently talked over others and felt he could
speak on behalf of mother and child, as well as himself. Father
said he had retained an attorney and would be suing the hospital
and DCFS.
A CSW finally interviewed mother in early December, after
her discharge from the hospital.2 Mother said she found out she
was pregnant in May, but she would not say when she began
going to the drug clinic. Mother said she was willing to drug test
and would enter an inpatient drug program if necessary. She
was unwilling to disclose what drugs she used or if she had a
criminal record.
On December 7, DCFS offered to allow the parents to
consent to a non-detained petition. On December 9, father said
he would not consent to a non-detained petition and would
2 The detention report states that the interview took place on
December 21, but that date appears to be in error because the
report was filed on December 14. It seems likely that the
interview occurred on December 1 or 2.
3
“ ‘leave the county’ ” if DCFS attempted to remove Leeann from
him.
B. Detention and Petition
The juvenile court issued an expedited removal order on
December 10. However, when DCFS went to the family’s home to
serve the order, father said mother and Leeann were in Riverside
County, and he refused to provide any information about their
whereabouts, calling the CSW a “ ‘domestic terrorist.’ ” Later
that day, DCFS received an anonymous tip that mother and
Leeann had been seen outside the family’s residence. DCFS
returned to the home later the same evening; father again exited
the home and said mother was in Murrieta and the child was in
Riverside with the maternal grandmother. Father again refused
to disclose Leeann’s whereabouts.
DCFS filed a juvenile dependency petition pursuant to
Welfare and Institutions Code3 section 300, subdivision (b) on
December 14, 2020. It alleged that (1) Leeann had a positive
toxicology screen for opiates and methadone at birth as a result of
mother’s substance use (count b-1), and (2) mother had a history
of substance abuse which rendered her unable to care for the
child, and father failed to protect Leeann because he knew of
mother’s substance abuse and allowed her to live in the family
home and have unlimited access to the child (count b-2).
Both parents appeared telephonically at the December 17
detention hearing. Mother’s counsel began by saying that
Leeann was with mother, for whom counsel could provide an
address. Counsel said mother “[had not been] aware of the
3 All subsequent statutory references are to the Welfare and
Institutions Code.
4
proceedings when the Department attempted to pick up the
child,” but that mother now was “perfectly willing to bring the
child in or have the Department pick up the child.” Father gave
a different account of Leeann’s whereabouts: He said that since
the family left the hospital, Leeann had been staying with his
mother (the paternal grandmother) and he had been visiting her
daily.
The court noted the discrepancy between mother’s and
father’s statements and asked mother again where Leeann was
at present. Mother said the child had been staying with both the
maternal grandfather and paternal grandmother, but currently
she was with the paternal grandmother. The court then directed
a court officer to call the paternal grandmother, who said Leeann
was not with her.4 The court officer also called the maternal
grandfather, who did not know where Leeann was and said he
had not seen her since a few days after her birth.
Based on this information, the court made a finding that
the parents had absconded with Leeann and were not being
truthful with the court. It ordered Leeann detained from both
parents, issued a protective custody warrant for the child, and
issued arrest warrants for the parents. It further ordered mother
to participate in a substance abuse rehabilitation program,
weekly random drug testing, parenting classes, and individual
counseling, and ordered father to participate in weekly random
drug testing, a parenting class, and individual counseling.
4 The paternal grandmother subsequently told the CSW that
she had seen pictures of Leeann, but had never met her.
5
C. Placement of Leeann in Foster Care
On January 14, 2021, nearly a month after the court issued
the protective custody warrant for Leeann, sheriff’s deputies
made a visit to the family’s home during the night. Leeann was
recovered and placed in foster care.
D. Jurisdiction/Disposition Report
In January 2021, father told the CSW that he and mother
lived separately until they found out mother was pregnant in
September 2020. He said he did not know whether mother had
used drugs during her pregnancy and did not know why mother
tested positive for opiates in September and November. Father
said he had never left mother alone with the baby during the
month they had been at large, and that he would insist that she
move out of their home if she began using drugs again.
Father said he had smoked marijuana in high school but
did not currently use drugs. He admitted that he and mother
should have interacted differently with DCFS, but he believed he
had done the right thing by refusing to relinquish Leeann. He
said: “The [juvenile court] commissioner broke my 8th
amendment right because they said they were doing it to us, the
parents, as a punishment. It’s cruel and unusual punishment.
You can’t do that to anyone in prison or anyone; that’s violating
my rights. I’m the one who made that decision because I was
scared about losing my baby, but I’m not playing this game with
them. I’m a fit enough parent, I’m not a drug addict and haven’t
done anything wrong in over 11 years. I wouldn’t give her up
because I felt she was being taken and kidnapped from me. . . .
I was only doing it for my child. I’m figuring out [the] laws and
the allegations and looking up everything. The four definitions of
neglect don’t apply to me. I’ve looked up the laws. It’s like I’m
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being treated as if I’m guilty until proven innocent and I wasn’t
given my due process.”
Mother continued to refuse to tell the CSW why she was
receiving methadone or to explain why she tested positive for
opiates at the hospital. When asked why she had refused to
surrender Leeann, she said it was because she believed she could
give her baby the best care.
Father’s arrest records revealed that he had been arrested
multiple times for drug possession and driving under the
influence, most recently in 2011; he also had been arrested in
2012, 2016, and 2020 for driving on a suspended driver’s license.
Mother had been arrested many times for narcotics possession,
most recently in June 2019.
E. Jurisdictional Hearing
At the January 29, 2021 hearing, counsel for DCFS asked
the court to sustain the petition as pled. Counsel noted that both
mother and baby had tested positive for opiates at Leeann’s birth;
father continued to deny that mother had a substance abuse
problem, had refused to allow the hospital to retest Leeann for
drugs, would not let mother speak to DCFS in the hospital, and
had absconded with the baby. Father “doesn’t understand how
his behavior has put this child at risk and he doesn’t understand
the severity of mother’s substance abuse and it doesn’t appear
he’s even trying to.”
The child’s counsel agreed that DCFS had met its burden
with regard to both counts of the petition. Counsel asserted that
it was clear mother still struggled with substance abuse and
father was unwilling to acknowledge the problem. Counsel
asked, however, that the disposition hearing be continued to give
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mother the chance to drug test, and father the chance to gain
insight and work with DCFS.
Mother’s counsel joined the child’s counsel’s request to
continue the disposition hearing, asserting that mother was
working hard on her sobriety and Leeann had been well cared for
by the parents. Father’s counsel asked that the b-2 count of the
petition be dismissed and father be deemed nonoffending,
suggesting that DCFS had failed to prove by a preponderance of
the evidence that father failed to protect the child from mother’s
drug use.
At the conclusion of argument, the court sustained both
counts of the petition and declared Leeann a juvenile court
dependent. The court found mother continued to use opiates
during her pregnancy, as evidenced by her positive tests of
September 30, November 21, and November 23. With regard to
the failure-to-protect allegation, the court noted that father knew
mother was on methadone, and “[n]o one is on a methadone
treatment, other than to get over opiates. . . . So I think the
father was being disingenuous in saying that he really didn’t
know she was using. . . . In addition, the failure to protect
I believe is viable and true because once [father learned] the child
did test positive at birth, the father started to block the ability of
the hospital personnel to get a confirmatory test. Instead he
started to speak for the mother, did not allow her to speak to the
hospital social workers while at the hospital. He refused to
consent to allow the baby to be tested again to confirm the test
. . . . And he absolutely absconded with this child and obstructed
the ability of the Department to do their work, that caused this
court to issue a protective custody order and an arrest warrant,
by absconding with the baby.”
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With regard to disposition, and over DCFS’s objection, the
court continued the hearing “to give [the] parents an opportunity
to participate, cooperate and engage in services so that I can
determine at a contested disposition hearing if this child should
be totally removed or sent back to the parents with services in
place.” The court specifically advised the parents that “you need
to participate in the programs and services that I initially
ordered at the detention hearing. . . . So it would behoove [you]
to get enrolled [and] start participating so that the court can
consider whether or not I can place the child in your home.”
F. Disposition
In March 2021, DCFS reported father had not yet begun
court-ordered classes or counseling and he had missed all of his
drug tests. Although father claimed to be on a waiting list for a
parenting class, he could not provide the name of the agency
offering the class. He also claimed to be drug-testing, but he did
not disclose the name of the clinic where he allegedly was testing,
nor did he provide evidence of any negative drug tests.
Mother appeared for only one of six scheduled drug tests
between January and March 2021. She recently had enrolled in
an outpatient drug program.
At the March 24, 2021 disposition hearing, DCFS
recommended that Leeann remain placed in foster care.
Leeann’s counsel joined in the request, stating that she had not
seen an adequate level of participation by either parent in court-
ordered programs. Counsel for the parents asked that the child
be released; alternatively, father’s counsel asked that father not
be required to drug test.
The court ordered that Leeann remain in foster care,
explaining as follows: “The court finds that the parents have
9
shown a level of dishonesty and they continue to show lack of
insight in this case. The court had to . . . issue[] arrest warrants
for the parents because they would not turn over this child. We
ultimately were able to recover the child . . . but it appears the
parents are still giving what this court considers to be bogus
excuses as to why they are not testing. . . . The fact that the
parents are saying, oh, they’re confused, it’s just another excuse
that compounds . . . what the court has already seen as their lack
of credibility and their non-truthtelling in the past. So I see that
this type of behavior is on-going and they are not showing this
court that they’ve gained insight. . . . And this is a baby . . . [who]
has the right to a drug-free household.” The court therefore
found that Leeann would be at substantial danger in the parents’
home, and “there are no services that can be put in place to avoid
removal because the services that have already been offered to
parents, they have not engaged in them to the extent and
capacity the court has . . . ordered.”
The court ordered mother to complete a full drug and
alcohol program, weekly random drug testing, a 12-step program,
a parenting class, and individual counseling. It ordered father to
submit to six random drug tests, to attend a drug rehabilitation
program if he missed a test or tested positive, and to complete a
parenting class and individual counseling. The parents were
granted weekly monitored visits with Leeann.
Father timely appealed from the jurisdictional and
dispositional orders.
DISCUSSION
Father contends: (1) there is no substantial evidence that
father posed a risk of harm to Leeann; (2) substantial evidence
did not support Leeann’s removal from father; and (3) the
10
juvenile court abused its discretion by ordering father to drug
test. As we discuss, father’s contentions are without merit.
I.
Substantial Evidence Supports the
Jurisdictional Finding as to Father
Section 300, subdivision (b)(1), provides that a child is
within the jurisdiction of the juvenile court if “[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] to adequately supervise or protect
the child.”
We review the juvenile court’s jurisdictional findings for
substantial evidence. “ ‘In reviewing a challenge to the
sufficiency of the evidence supporting the jurisdictional
findings . . . , 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.” ’ ” (In re I.J. (2013) 56 Cal.4th 766, 773.)
“ ‘ “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.]” ’ ” (Ibid.)
In the present case, substantial evidence supported the
juvenile court’s finding that father placed Leeann at risk of
serious physical harm. Despite learning that mother and Leeann
had tested positive for opiates at Leeann’s birth, father actively
impeded DCFS’s investigation into Leeann’s prenatal drug
exposure and mother’s continuing drug use by refusing to disclose
mother’s drug history, refusing to allow DCFS to retest Leeann
11
for drug exposure, blocking DCFS’s access to mother, and
refusing to allow DCFS to conduct a home visit. Once mother
and Leeann were released from the hospital, father lied about
their whereabouts and absconded with Leeann for more than a
month. In short, father thwarted DCFS’s attempts to determine
the kinds of drugs to which Leeann had been exposed in utero
and the frequency of her exposure, which facts were relevant to
the hospital’s care of Leeann. Father then permitted mother,
whom he knew still used illicit drugs, to care for newborn
Leeann, and he impeded DCFS’s repeated attempts to supervise
Leeann at home to ensure her safety. Taken together, this
evidence abundantly supported the juvenile court’s conclusion
that father put Leeann at risk of harm by failing to protect her
from mother’s drug use.
Father contends his conduct was reasonable because he
“believed [mother] was taking care of herself” and that mother’s
positive test for opiates “was an error.” We do not agree. Even if
it were reasonable for father to believe mother was not using
opiates before she was admitted to the hospital, that belief no
longer was reasonable after both mother and Leeann tested
positive for opiates and Leeann exhibited some signs of opiate
withdrawal in the hospital, including jitters and lack of appetite.
Moreover, if father truly believed the initial test might be in
error, he could have best protected Leeann by permitting a
second test—not by refusing to permit such a test.
Father next contends he was appropriately protective of
Leeann because once he accepted that mother was continuing to
use opiates, “he agreed to supervise mother and not allow Leeann
to be alone with mother, and he never did.” In fact, while father
said he would protect Leeann from mother’s drug use, his conduct
12
demonstrated otherwise. As we have described, father actively
thwarted DCFS’s attempts to ensure Leeann’s safety, even going
so far as to flee Los Angeles County and to refuse to disclose
Leeann’s whereabouts. His behavior both endangered Leeann
and made it impossible for DCFS to verify father’s claim that he
had never allowed mother to be alone with Leeann.
Father contends finally that although he initially refused to
work with DCFS, his past behavior was not probative of his
future conduct because he “had calmed down and had a change of
attitude by the time of the jurisdictional hearing.” The record
does not support this assertion. Just a week before the
jurisdictional hearing, father said he did not regret his decision
not to turn over Leeann to DCFS because the juvenile court
commissioner had “violat[ed] [his] rights” and denied him due
process. Father also refused to comply with the court’s orders to
drug test, enroll in a parenting class, and participate in
individual counseling. In short, by the time of the jurisdiction
hearing, father demonstrated neither a change in attitude nor a
willingness to comply with the court’s orders. The juvenile court
did not err in so concluding.
II.
The Removal Order Was Supported
by Substantial Evidence
Section 361, subdivisions (c) and (d) govern the removal of a
dependent child from her parents’ physical custody. As relevant
to father’s appellate claims, section 361, subdivision (c)(1)
provides that a child shall not be taken from her parent’s
physical custody unless “[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
13
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.”
“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 [is in the physical
custody of] 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 N.M. (2011) 197 Cal.App.4th 159, 169–170.)
Whether the conditions in the home present a risk of harm
to the child is a factual issue. We therefore apply the substantial
evidence test, reviewing the record to determine whether there is
any substantial evidence to support the juvenile court’s
conclusions, resolving all conflicts and making all reasonable
inferences from the evidence in favor of upholding the juvenile
court’s orders. (In re Christopher R. (2014) 225 Cal.App.4th 1210,
1216.) In doing so, we take into account the clear and convincing
evidence standard—that is, we consider whether the record as a
whole contains substantial evidence from which a reasonable
trier of fact could have found potential detriment by clear and
convincing evidence. (Conservatorship of O.B. (2020) 9 Cal.5th
989, 1005–1006.)
For all the reasons discussed in the prior section,
substantial evidence supported the juvenile court’s conclusion
that Leeann would have been at risk of harm if she remained in
father’s physical custody. Substantial evidence also supported
the juvenile court’s conclusion that there were no reasonable
14
means by which Leeann’s physical health could have been
protected in father’s custody. Father repeatedly had shown
himself unwilling to accept in-home services that would have
made it possible for Leeann to remain with her parents, including
by refusing to allow DCFS to make a home visit, refusing to
consent to a non-detained petition, lying to the juvenile court
about Leeann’s whereabouts, and actively concealing Leeann
from DCFS. Father expressed no contrition for these actions,
insisting they were justified because his own rights had been
violated and he was a fit parent. Father’s intransigence and
unwillingness to work with DCFS was more than substantial
evidence that Leeann could not have been adequately protected
in father’s physical custody.
We note that father remained unwilling to work with DCFS
even after the juvenile court continued the disposition hearing for
the express purpose of “giv[ing] the parents an opportunity to
participate, cooperate and engage in services so [the court could]
determine at a contested disposition hearing if this child should
be totally removed or sent back to the parents with services in
place.” At the time the court continued the hearing, it ordered
the parents to drug test, enroll in a parenting class, and engage
in individual counseling, and it specifically advised them that “it
would behoove the parents to get enrolled, start participating so
that the court can consider whether or not I can place the child in
your home.” Notwithstanding this unambiguous advisement,
father did not begin participating in any of the programs outlined
by the court between the January and March 2021 hearings.
The existence of “reasonable means” to protect the child at
home requires a parent’s willingness to participate in services
and to submit to DCFS supervision. (See In re Nathan E. (2021)
15
61 Cal.App.5th 114, 124 [parent’s failure to comply with court-
ordered services was substantial evidence that children could not
be protected in parent’s home]; In re Cole C. (2009)
174 Cal.App.4th 900, 918 [evidence supported court’s findings
that child could not be protected in parent’s home where parent
had not accepted any voluntary services or participated in visits
with child in structured setting].) Father repeatedly showed
himself unwilling to do either. The juvenile court therefore did
not err in finding that Leeann could not safely have remained in
father’s custody.
III.
The Juvenile Court Did Not Abuse Its Discretion by
Ordering Father to Drug Test
Father’s final contention is that the trial court abused its
discretion by ordering him to drug test because the petition did
not allege that he abused drugs. For the reasons that follow,
father’s contention lacks merit.
If a child is adjudged a dependent child of the juvenile
court, the court may make “any and all reasonable orders for the
care, supervision, custody, conduct, maintenance, and support of
the child.” (§ 362, subd. (a).) The juvenile court has “wide
latitude” in making such orders for the well-being of the child and
“is not limited to the content of the sustained petition when it
considers what dispositional orders would be in the best interests
of the children. [Citations.]” (In re Briana V. (2015)
236 Cal.App.4th 297, 311.) To the contrary, the court’s “broad
discretion to determine what would best serve and protect the
child’s interest and to fashion a dispositional order in accord with
this discretion, permits the court to formulate disposition orders
to address parental deficiencies when necessary to protect and
16
promote the child’s welfare, even when that parental conduct did
not give rise to the dependency proceedings. [Citation.]” (In re
K.T. (2020) 49 Cal.App.5th 20, 25.)
In In re Briana V., supra, 236 Cal.App.4th 297, the Court of
Appeal held that the juvenile court did not abuse its discretion by
ordering the father to complete sexual abuse counseling, even
though physical abuse, not sexual abuse, precipitated DCFS’s
involvement with the family. The appellate court noted that
although there was no evidence that the father had sexually
abused his daughters, he had a prior conviction for rape and was
a registered sex offender. (Id. at pp. 300–301, 307.) Under those
circumstances, the Court of Appeal said, “we cannot say that the
juvenile court’s order requiring father to attend sexual abuse
counseling was beyond the bounds of reason.” (Id. at p. 312.)
The court similarly concluded in In re Christopher H.
(1996) 50 Cal.App.4th 1001. There, the juvenile court dismissed
an allegation that the father’s alcohol abuse had placed his child
at risk of harm, but it nonetheless ordered the father to submit to
drug and alcohol testing as a condition of reunification.5 The
father challenged the order, urging that the drug or alcohol
testing condition was beyond the court’s jurisdiction because the
court found unproven the allegation that the father’s alcohol-
related problems negatively affected his ability to care for the
child. (Id. at p. 1006.) The Court of Appeal disagreed and
affirmed. It explained: “ ‘ “[A] reunification plan formulated to
5 Although there was evidence that the father had a
substance abuse problem, the court apparently found that
father’s substance abuse had not placed the child at risk of harm
because the child had been hospitalized since his birth. (In re
Christopher H., supra, 50 Cal.App.4th at pp. 1005–1007.)
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correct certain parental deficiencies need not necessarily address
other types of conduct, equally deleterious to the well-being of a
child, but which had not arisen at the time the original plan was
formulated.” ’ [Citation.] However, when the court is aware of
other deficiencies that impede the parent’s ability to reunify with
his child, the court may address them in the reunification plan.”
(Id. at p. 1008, italics added.)
In the present case, although the juvenile court did not
make a finding that father abused alcohol or drugs, it had a
reasonable basis for suspecting that father may have been using
drugs—namely, that father had been arrested multiple times for
drug possession and driving under the influence, he was in a
romantic relationship with a woman who continued to use illicit
drugs, and he was extraordinarily secretive about his life. Under
these circumstances, therefore, and in light of Leeann’s very
young age and inability to protect herself, the court did not abuse
its discretion by ordering father to submit to six drug tests to rule
out current substance abuse.
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DISPOSITION
The jurisdiction and disposition orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
LIPNER, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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