In re Z.S. CA2/4

Filed 2/24/22 In re Z.S. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re Z.S., a Person Coming B309645
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. Nos.
20CCJP05841,
20CCJP05841A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
S.M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Brett Bianco, Judge. Dismissed in part; affirmed in part.
Richard L. Knight, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Casto-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
The Los Angeles County Department of Children and
Family Services (DCFS) placed mother S.M.’s daughter, Z., in
protective custody shortly after her birth. DCFS subsequently
filed a petition alleging Z. was at substantial risk of suffering
serious physical harm or illness due to mother’s substance abuse
and mental and emotional problems. (Welf. & Inst. Code, § 300,
subd. (b)(1).)1 The juvenile court sustained the petition, removed
Z. from mother, and placed her in foster care. Mother appealed.
While her appeal was pending, the juvenile court ordered Z.
released to mother and terminated jurisdiction.
Mother contends the detention of Z. at the hospital violated
her Fourth Amendment rights, and the jurisdiction and
disposition orders were not supported by substantial evidence.2
Respondent DCFS responds that mother forfeited her Fourth
Amendment argument, the jurisdiction and disposition orders
were properly supported, and, alternatively, that mother’s appeal
of the disposition order is moot. We agree with DCFS that
mother has forfeited her Fourth Amendment claim, the
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 In her opening and reply briefs, mother also argued that
DCFS failed to comply with the Indian Child Welfare Act (25
U.S.C. § 1901 et seq.). In her supplemental opposition to DCFS’s
motion to dismiss the appeal as moot, however, mother agreed
that her Indian Child Welfare Act claims were moot. We agree
and dismiss this portion of the appeal.
2
jurisdictional findings were supported by substantial evidence,
and mother’s challenge to the disposition order is moot. We
accordingly affirm the jurisdictional findings and orders and
dismiss the appeal to the extent it challenges the disposition
order.
BACKGROUND
Referral and Detention
Hospital staff contacted DCFS shortly after Z.’s birth in
October 2020, citing concerns about mother’s “erratic aggressive”
behavior; positive drug test results at admission for
amphetamines, benzodiazepine, and cannabinoids; failure to
bond with or care for Z.; and threats to leave the hospital before
being discharged. Z. was born healthy and tested negative for all
substances.
When a DCFS children’s social worker (CSW) arrived at
the hospital shortly after the referral, mother was calm.
According to the CSW, mother admitted she “occasionally” used
marijuana for pain, but was “adamant” in her denial of other
substance use. She suggested that the “random people on the
street” from whom she purchased marijuana may have stored the
joints she purchased next to other drugs. Mother reported that
Z.’s father had been shot and killed in March 2020. She also
reported that she had been homeless until August 2020, when
she moved into transitional housing at St. Anne’s.
Mother reported that she had been diagnosed with
depression as a teenager, after her own mother died in 2013.
Mother could not recall the name of the medication she had been
prescribed, but stated she “just stopped going to the doctors and
taking the medication.” Mother said learning she was pregnant
with Z. “gave her some joy,” and she was also “glad” to have her
3
own apartment at St. Anne’s. Mother said she was willing to
participate in parenting classes and therapy, but was “not in the
mood” to sign any of the documents the CSW presented.
During the interview, mother stated that she was “ready to
leave” and wanted to be home. When asked about her refusal to
comply with a post-partum assessment and attempts to remove
her IV and compression boots, mother said she just wanted to
leave the hospital. She also stated she was “stressed out,” and
shrugged when the CSW asked if she planned to leave before
being formally discharged.
The CSW excused herself to consult with her supervisor.
After that conversation, the CSW “explained to mother that due
to mother’s irrational aggressive behavior with staff, stating she
wanted to leave, and drug test results, the child was going to be
placed into protective custody.” Mother began to cry and said no
one was going to take her baby. She also “loudly argued” with
the nurse who removed Z. from her room. The nurse assured
mother that Z. would be in the nursery and mother could visit
her by calling the nurses.
The following day, the hospital social worker called the
CSW to report that Z. was ready to be discharged. She also
reported that mother had “not bonded with the child since
removing from the room last night,” and would not be discharged
until the following day. Mother also called the CSW to give her
the name of a family friend who could care for Z. The family
friend later called the CSW and affirmed her willingness to care
for Z. She described mother as “kind and helpful and very
mature,” and had no concerns about mother abusing substances
or engaging in aggressive behavior.
4
Mother was calm when the CSW arrived at the hospital for
Z.’s discharge. However, while saying good-bye to Z., mother
engaged in a speaker phone conversation in which she and the
other participant profanely derided and insulted the CSW.
Mother raised her voice, prompting two nurses to come into the
nursery and ask her to calm down. Mother lowered her voice but
continued to complain to the person on the phone. She then
raised her voice again, and Z. and another infant in the nursery
began to cry. Two nurses told mother she had to leave the
nursery immediately. Mother refused to leave and was escorted
out by security. Z. was safely removed from the hospital and
transferred to her placement.
Section 300 Petition
DCFS filed a section 300 petition the following day. DCFS
alleged two counts under section 300, subdivision (b)(1). Count b-
1 alleged mother was “a current abuser of amphetamine,
benzodiazepine and marijuana, which renders the mother
incapable of providing regular care and supervision of the child.
On 10/27/2020, at [sic] the mother had a positive toxicology
screen for Amphetamine, Benzodiazepine and Marijuana. The
mother abused substances during the mother’s pregnancy with
the child. The child is of such young age requiring constant care
and supervision and the mother’s substance abuse interferes with
the mother’s ability to provide regular care and appropriate
supervision of the child. The mother’s substance abuse
endangers the child’s physical health and safety and places the
child at risk of serious physical harm, damage and danger.”
Count b-2 alleged mother “has mental and emotional problems
including aggression and a diagnosis of Depression which renders
the mother incapable of providing regular care and appropriate
5
supervision for the child. The mother failed to participate in
consistent mental health treatment. The mother failed to take
her psychotropic medications as prescribed. Such mental and
emotional problems on the part of the mother endangers the
child’s physical health and safety and places the child at risk of
serious physical harm, damage and danger.”
At a November 4, 2020 detention hearing, the court ordered
Z. detained from mother. The court ordered monitored visitation,
and gave DCFS discretion to liberalize the visitation and release
Z. to mother at St. Anne’s. It also ordered a drug testing referral
for mother.
Jurisdiction/Disposition Report
DCFS filed a jurisdiction/disposition report on November
25, 2020. It reported that a CSW interviewed mother on
November 18, 2020. During that interview, mother denied
having a drug problem or using amphetamines or
benzodiazepine. She admitted she “smoked weed” and said she
used marijuana edibles “to cope with my baby daddy passing
away.” Mother also told the CSW she did not understand why
the depression she suffered as a teenager was relevant, and
asserted that DCFS was “using my history against me.”3 She
acknowledged that she had been aggressive at the hospital,
stating, “what did you all expect when they came and took my
baby when I had just given birth. Yeah, I was emotional and
mad. I knew what was going on and I don’t think I was irrational.
I was mad as hell.” Mother also added that she “did demonstrate
3 Mother and her siblings had an extensive history with
DCFS when mother was a minor. We granted mother’s motion to
augment the appellate record with documentation of that history.
6
aggressive behaviors due to not knowing how to cope with life
circumstances.” She stated she had participated in therapy and
was “trying really hard to manage my emotions better now.”
Mother asserted that she was “capable and well-equipped to take
care of my baby.”
A CSW spoke with a staff member at St. Anne’s on
November 20, 2020. The staff member reported that mother
“appears committed and focused on regaining custody of the
child.” Mother’s therapist at St. Anne’s reported that mother
completed the intake process on November 2, 2020, and the
parenting class facilitator stated that mother had actively
participated in three parenting sessions. Mother had not yet
enrolled in a substance abuse program, but was in the process of
doing so. Mother had been scheduled for two drug tests. The
first was a no-show (mother stated she “dropped the cup in the
toilet”), but the second, on November 17, 2020, was negative.
A CSW also spoke with mother’s maternal great-cousin, T.,
who had known mother since infancy and had cared for mother
during one of mother’s dependencies. T. reported that mother
had used marijuana in the past, but she had no knowledge of
mother using other drugs. T. further stated that she would not
have any safety concerns if mother “tests clean for a significant
amount of time.” T. reported that mother “has a history of
aggressive behaviors,” including “a very short patience [sic].” T.
opined that mother’s homelessness during the pandemic “has
played a big part in her depression.”
Z.’s foster mother, who supervised mother’s visits with Z.,
reported that the visits were going well; mother appeared to have
a good bond and appropriate interaction with Z. The foster
mother also reported that mother appeared depressed due to not
7
having Z. in her custody, and had “indicated” that “experimenting
with substances during pregnancy was a mistake.”
DCFS stated that it “remain[ed] significantly concerned
with the mother’s ability to provide the child with a safe and
stable home environment due to the mother’s history of substance
abuse as well as her denial of the substance use.” It was also
“concerned with the mother’s ability to understand the severity of
her actions and overall accountability.” DCFS accordingly
recommended that the petition be sustained and reunification
services ordered for mother. Under the heading “Reasonable
Efforts,” DCFS stated that it had taken the following actions:
“noticed the mother for the hearing,” “reviewed CWS/CMS for
prior child welfare history,” “referred the child to the [medical]
clinic,” “maintains contact with the child to assess the child’s
well-being,” “interviewed all available parties in regards to the
current allegations,” “maintains monthly visitation with the
child,” “obtained hospital birth verification for the child,” and
“obtained hospital toxicology screening.”
In a last minute information filed December 11, 2020,
DCFS reported that mother had two additional drug tests: a no-
show on November 18 and a negative test on December 8. DCFS
attempted to contact mother to inquire about the missed drug
test, but had not yet heard back from her. Mother’s case
manager at St. Anne’s reported that she and mother were
working on enrolling mother in a substance abuse program, and
mother “is willing to comply.” DCFS informed the court that its
recommendation remained unchanged. It opined that it would be
in Z.’s best interest for mother to continue to demonstrate
sobriety through additional drug testing, learn more effective
8
coping strategies, and improve her understanding of the severity
of her actions.
Adjudication Hearing and Orders
The court held a combined jurisdiction and disposition
hearing on December 15, 2020. DCFS introduced its detention
report, jurisdiction/disposition report, notice of hearing, and last
minute information. Mother introduced a progress letter from
her parenting program and a document showing she had begun
therapy.
Counsel for DCFS argued that the court should sustain
both allegations. It asserted that mother’s denial of
amphetamine and benzodiazepine use was implausible, and that
her admitted use of marijuana throughout her pregnancy placed
Z. at risk, both in utero and due to her very young age. Counsel
further argued that mother was using drugs to self-medicate her
unresolved mental health issues, and pointed to T.’s statements
that mother was quick to anger. Counsel for Z. joined DCFS’s
arguments.
Mother’s counsel urged the court to dismiss the petition.
Counsel contended that mother’s admitted use of marijuana did
not rise to the level of abuse. Citing Z.’s negative drug test, as
well as mother’s, counsel further argued that DCFS failed to
demonstrate a nexus between her use and any risk to Z. Counsel
also argued that there was no connection between mother’s
diagnosis of depression as a teen and her current ability to parent
Z. some five to six years later. She also emphasized positive
steps mother had taken, such as procuring housing, participating
in programming, and engaging with Z. during visits.
The court found the allegations true by a preponderance of
the evidence. It specifically “note[d] the tender age of the
9
newborn child,” stated that mother’s repeated denial of substance
abuse despite her positive test was “somewhat concerning,” and
added that the evidence showed that mother struggled with the
emotional control necessary to care for a newborn in difficult
circumstances.
The parties then argued about disposition. Counsel for
DCFS reiterated its request that the court suitably place Z. and
order reunification services for mother. She argued that
visitation should remain monitored, but sought discretion to
liberalize if mother produced consecutive clean drug tests. Z.’s
counsel again joined DCFS’s argument, expressing concern about
mother’s failure to acknowledge her drug use and take all her
drug tests. Mother’s counsel argued that Z. should be released to
mother’s care. She emphasized mother's consistent positive
visitation with Z., participation in programs, negative drug tests,
and network of support at St. Anne’s and within her family.
The court declared Z. a dependent and ordered her removed
from mother, based on “unaddressed issues of substance abuse”
and a “need to see some more . . . insight . . . in terms of her
mental health status.” It acknowledged that mother “probably
experienced a lot of traumatic stressors in her own life,” but
stated that “those need to be dealt with so they don’t carry over
into the life of her child.” The court ordered mother to complete a
full drug program with after-care and submit to random weekly
drug and alcohol testing. It ordered monitored visitation, but
gave DCFS discretion to release Z. to mother, provided she
completed “four clean consecutive unmissed tests” and continued
to reside at St. Anne’s. The court also ordered an Evidence Code
section 730 evaluation, plus “all standard terms and conditions.”
Mother timely appealed.
10
Subsequent Events
We granted DCFS’s request for judicial notice of events
that occurred while the appeal was pending.
On January 26, 2021, DCFS filed a last minute information
notifying the court that it was liberalizing mother’s visits to
unmonitored. It noted that mother had five consecutive clean
drug tests, was actively participating in all of her services, in
which she had made “significant progress,” and completed her
Evidence Code section 730 evaluation. It further noted that
mother had bonded with Z. and attended Z.’s most recent medical
appointment.
On February 3, 2021, mother filed a section 388 petition
requesting that Z. be placed with her. Mother stated that she
had completed her parenting course, was enrolled in both a drug
program and individual counseling, and had had five consecutive
clean drug tests. Mother also completed her Evidence Code
section 730 evaluation; the evaluator recommended that Z. be
returned to her care. Z.’s counsel agreed with the request.
Mother provided documentation in support of the request,
including letters from her therapist and drug program
supervisor, a certificate showing she completed eight parenting
classes, and the Evidence Code section 730 evaluation report.
The court granted the petition after holding a hearing on March
12, 2021.
On July 12, 2021, the court held a review hearing. Over
the objections of DCFS and Z.’s counsel, the court found that the
conditions justifying jurisdiction no longer existed and
terminated jurisdiction over Z. Mother timely appealed the
order; that appeal remains pending.
11
In light of these subsequent events, DCFS filed a motion to
dismiss the instant appeal as moot. Mother opposed the motion
in a written response and again in a “supplemental opposition.”
We denied the motion.
DISCUSSION
I. Justiciability
Given the post-appeal developments in this case, and
DCFS’s contention that mother’s challenge to the disposition
order is moot, we first consider the justiciability of the appeal.
Under the justiciability doctrine, courts generally do not resolve
moot questions or abstract propositions, nor do we issue advisory
opinions. (In re L.O. (2021) 67 Cal.App.5th 227, 237.) A key
requirement for justiciability is the ability of the court to provide
effective relief—a remedy that can have a tangible, practical
effect on the parties’ conduct or legal status. (Ibid.) “‘For this
reason, an appellate court may decline to address the evidentiary
support for any remaining jurisdictional findings once a single
finding has been found to be supported by the evidence’ or is
unchallenged.” (Ibid.)
There are exceptions to this general rule, however. “[W]e
generally will exercise our discretion and reach the merits of a
challenge to any jurisdictional finding when the finding (1) serves
as the basis for dispositional orders that are also challenged on
appeal [citation]; (2) could be prejudicial to the appellant or could
potentially impact the current or future dependency proceedings
[citations]; or (3) ‘could have other consequences for [the
appellant], beyond jurisdiction’ [citation].” (In re Drake M. (2012)
211 Cal.App.4th 754, 762-763 (Drake M.).)
Here, the juvenile court exercised jurisdiction over Z. under
section 300, subdivision (b)(1), meaning it found that Z. “has
12
suffered, or there is a substantial risk that the child will suffer,
serious, physical harm or illness, as a result” of mother’s
substance abuse and mental and emotional problems. (§ 300,
subd. (b)(1).) These findings served as the basis for the
disposition order, which mother also challenges. Furthermore,
the findings could have severe consequences to mother in future
dependency proceedings. (In re Daisy H. (2011) 192 Cal.App.4th
713, 716.) We accordingly exercise our discretion to reach the
merits of mother’s appeal of the jurisdiction order.
We agree with DCFS, however, that mother’s challenge to
the disposition order is not justiciable. Mother contends the court
“erred at disposition by removing Z[.]” from her custody and by
failing to consider reasonable alternatives to removal. She
asserts that “the removal order should be reversed,” and in her
request for relief again states that we “should reverse the
juvenile court order removing the children [sic] from [her]
custody.”
The order removing Z. from mother’s care already has been
reversed. Not only did the court reverse the order by granting
mother’s section 388 petition, it also subsequently terminated
jurisdiction with Z. in mother’s care. Due to these developments,
we would be unable to provide mother with any effective relief
even if we were to conclude the court erred at the disposition
stage of the proceedings. She already has been awarded the
relief she seeks: reunification with Z. We accordingly dismiss
mother’s challenge to the disposition order as moot.
II. Fourth Amendment
Mother contends DCFS violated the Fourth Amendment by
taking Z. into protective custody at the hospital without first
obtaining a warrant, because no exigent circumstances were
13
present. Mother acknowledges that her counsel failed to raise
this issue before the juvenile court, but urges us to exercise our
discretion “to review an otherwise forfeited issue” because
counsel for DCFS raised the issue “in an indirect way” and the
issue presents a question of law that may be raised for the first
instance on appeal. DCFS responds that mother forfeited the
issue. We agree with DCFS.
The doctrine of forfeiture prevents a party from seeking
reversal on appeal after failing to raise an objection in the lower
court. It provides that “a reviewing court ordinarily will not
consider a challenge to a ruling if an objection could have been
but was not made in the trial court.” (In re S.B. (2004) 32 Cal.4th
1287, 1293.) The purpose of this rule, which applies in
dependency cases, “is to encourage parties to bring errors to the
attention of the trial court, so that they may be corrected.” (Ibid.)
Though application of the forfeiture rule is not automatic, “the
appellate court’s discretion to excuse forfeiture should be
exercised rarely and only in cases presenting an important legal
issue.” (Ibid.)
Mother’s counsel did not raise the Fourth Amendment in
any way during the detention hearing, when the juvenile court
could have addressed mother’s concerns, or even at the
subsequent adjudication hearing. This silence could not be
attributed to lack of notice of the issue; the paperwork supporting
the hospital hold was attached to the detention report, and
counsel’s arguments indicated familiarity with the contents of
that report.
14
Moreover, contrary to mother’s assertion, counsel for DCFS
never raised the issue.4 Counsel for DCFS stated, “What is also
concerning is the way the referral came in. Mother was afraid of
the hospital staff, appearing irrational. She was combative. At
one point security had to be called into the nursery when we were
trying to explain detention to the mother. It appears at this point
there are some issues that need to be work [sic] out before this
newborn can be returned to the mother’s care.” These remarks in
no way suggest a Fourth Amendment violation or preserve the
issue for appeal.
The constitutional nature of mother’s claim does not excuse
the forfeiture. Nor does it render the question an entirely legal
one of the sort that may be raised for the first time on appeal.
“Social workers constitutionally may remove a child from the
custody of a parent without prior judicial authorization if the
information they possess at the time of seizure provides
reasonable cause to believe that the child is in imminent danger.”
(M.L. v. Superior Court (2009) 172 Cal.App.4th 520, 527; see also
§ 306, subd. (a)(2).) “[D]etermining whether an official had
‘reasonable cause to believe exigent circumstances existed in a
given situation . . . [is a] “question[ ] of fact . . . .”’” (Arce v.
Children’s Hospital Los Angeles (2012) 211 Cal.App.4th 1455,
1475.) The juvenile court here did not have the opportunity to
resolve this important question of fact, and we decline to do so in
the first instance.
4 We do not suggest or hold that a party may avoid forfeiture
if an opposing party raises the forfeited issue or a related issue.
We simply note that the comments made by DCFS counsel do not
support mother’s assertion that DCFS raised the issue, “albeit in
an indirect way.”
15
Mother asserts in reply that DCFS “doesn’t want this issue
. . . reviewed on appeal because this kind of illegal taking of
children in violation of the Fourth and Fourteenth Amendment
occurs too often if not routinely.” This inappropriate ad hominem
attack is not well taken. Of the three cases mother cites, only one,
Rogers v. County of San Joaquin (9th Cir. 2007) 487 F.3d 1288,
actually concluded that a Fourth Amendment violation occurred.
The other two cases, Arce v. Children’s Hospital Los Angeles,
supra, 211 Cal.App.4th 1455, and Mabe v. San Bernardino
County, Department of Public Social Services (9th Cir. 2001) 237
F.3d 1101, involved unresolved, unproven allegations. Neither a
single case, nor three cases involving different agencies spread
over more than a decade, establishes “routine” misconduct or
suggests misconduct is likely to recur if forfeiture is not excused
here.
III. Jurisdiction
The court sustained allegations that mother’s substance
abuse and mental and emotional problems placed Z. at risk of
serious physical harm. Mother contends the court’s jurisdiction
findings were not supported by substantial evidence. With
respect to the substance abuse allegation, mother argues that
there was no evidence she abused substances or connecting her
alleged substance abuse to any risk to Z. With respect to the
allegation concerning her mental and emotional problems,
mother argues that the “record lacks evidence of any specific,
defined risk of harm to Z[.] from [mother’s] mental illness,
depression.”
A. Standard of Review
“‘In reviewing a challenge to the sufficiency of the evidence
supporting jurisdictional findings and disposition, we determine
16
if substantial evidence, contradicted or uncontradicted, supports
them. “In making this determination, we draw all reasonable
inferences from the evidence to support the findings and orders of
the dependency court; we review the record in the light most
favorable to the court’s determinations; and we note that issues
of fact and credibility are the providence of the trial court.”
[Citation.] “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.
[Citations.] ‘“[T]he [appellate] court must review the whole
record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence . . . such that
a reasonable trier of fact could find [that the order is
appropriate].”’ [Citation.]” [Citation.]’” (In re I.J. (2013) 56
Cal.4th 766, 773.)
B. General Principles
Section 300, subdivision (b)(1) authorizes a juvenile court to
exercise jurisdiction over a child if it finds that “[t]he child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of the failure or
inability of his or her parent or guardian to adequately supervise
or protect the child, . . . or by the willful or negligent failure of the
parent or guardian to provide the child with adequate food,
clothing, shelter, or medical treatment, or by the inability of the
parent or guardian to provide regular care for the child due to the
parent’s or guardian’s mental illness, developmental disability, or
substance abuse.” (§ 300, subd. (b)(1).) “A jurisdictional finding
under section 300, subdivision (b)(1), requires [the agency] to
demonstrate the following three elements by a preponderance of
the evidence: (1) neglectful conduct, failure, or inability by the
17
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.)
“‘The court need not wait until a child is seriously abused
or injured to assume jurisdiction and take the steps necessary to
protect the child.’ [Citation.]” (In re I.J., supra, 56 Cal.4th at p.
773.) Instead, “‘[t]he basic question under section 300 is whether
circumstances at the time of the [adjudication] hearing subject
the minor to the defined risk of harm.’ [Citation.]” (In re J.N.
(2010) 181 Cal.App.4th 1010, 1022.) In evaluating whether a
child faces a risk of harm under section 300, the court may
consider past events, as “[a] parent’s past conduct is a good
predictor of future behavior.” (In re T.V. (2013) 217 Cal.App.4th
126, 133.) To establish a risk of harm at the time of the
adjudication hearing, however, “[t]here must be some reason
beyond mere speculation to believe the alleged conduct will recur.
[Citation.]” (In re James R. (2009) 176 Cal.App.4th 129, 136.)
C. Substance Abuse
Mother argues that there was no evidence that she abused
any substances, or any link between her alleged substance abuse
and a risk of harm to Z. We disagree.
A drug test administered prior to Z.’s birth showed that
mother used at least three different drugs while pregnant with Z.
Mother admitted using marijuana, though her statements
regarding her use varied. She told hospital staff and the
responding CSW that she used marijuana “on occasion,” and “did
not do it all the time because it made her sleepy.” Mother also
told the CSW she had used marijuana “regularly” prior to
learning she was pregnant. Mother later told a different CSW
that she consumed marijuana edibles when she was 2-3 months
18
pregnant, to cope with the loss of Z.’s father; in the same
interview, however, she stated that she “stopped using edibles
when [she] was 8 months pregnant,” and also “smoked weed.”
Despite the positive test results for amphetamines and
benzodiazepine, mother consistently told DCFS she never used
either drug; she suggested, repeatedly, that the marijuana she
purchased may have touched other drugs before she bought it.
Mother told Z.’s foster mother, however, that “experimenting
with substances during pregnancy was a mistake.” And two of
the drug tests mother took after Z. was detained were no-shows,
which properly may be considered the equivalent of a positive
test result. (In re Christopher R. (2014) 225 Cal.App.4th 1210,
1217 (Christopher R.).)
Mother does not dispute this evidence establishes drug
use. She contends that her drug use did not rise to the level of
5
abuse. She relies on Drake M., supra, 211 Cal.App.4th at p. 766,
which held that a finding of substance abuse must be based on
evidence sufficient to either “show that the parent . . . had been
diagnosed as having a current substance abuse problem by a
5 Mother does argue that her two no-show drug tests should
not constitute substantial evidence of drug use or abuse because
the court had no authority to make her drug test before it
exercised jurisdiction over Z. While the juvenile court cannot
order or compel a parent to cooperate with DCFS or participate in
services prior to the jurisdictional hearing, “[t]hat’s not to say
there are no consequences for failing to cooperate in the
investigation or participate in services. One consequence is that
those failures ‘can be used later as evidence in a review hearing
or a hearing on a [section 300] petition.’ [Citation.]” (In re E.E.
(2020) 49 Cal.App.5th 195, 209.) We decline mother’s invitation
to “not follow” In re E.E.
19
medical professional,” or “establish that the parent . . . has a
current substance abuse problem as defined in the DSM-IV-TR,”
a diagnostic manual used by medical professionals.6
Even under this definition, which several courts have
rejected as too narrow (see, e.g., Christopher R., supra, 225
Cal.App.4th at p. 1218; In re Rebecca C. (2014) 228 Cal.App.4th
720, 726), the record supports a finding of substance abuse.
According to the jurisdiction/disposition report, mother’s hospital
discharge summary stated that she “was diagnosed with drug
abuse during pregnancy.”7 Mother’s pregnancy ended
immediately prior to Z.’s detention and two months before the
6 “The full definition of ‘substance abuse’ found in the DSM-
IV-TR describes the condition as ‘[a] maladaptive pattern of
substance use leading to clinically significant impairment or
distress, as manifested by one (or more) of the following,
occurring within a 12-month period: [¶] (1) recurrent substance
use resulting in a failure to fulfill major role obligations at work,
school, or home (e.g., repeated absences or poor work performance
related to substance abuse; substance-related absences,
suspensions, or expulsions from school; neglect of children or
household)[; ¶] (2) recurrent substance use in situations in which
it is physically hazardous (e.g., driving an automobile or
operating a machine when impaired by substance use)[;¶] (3)
recurrent substance-related legal problems (e.g., arrests for
substance-related disorderly conduct)[; and ¶] (4) continued
substance use despite having persistent or recurrent social or
interpersonal problems caused or exacerbated by the effects of
the substance (e.g., arguments with spouse about consequences of
intoxication, physical fights).” (In re Drake M., supra, 211
Cal.App.4th at p. 766.)
7 The discharge report appears to be included in the
appellate record but is not legible.
20
adjudication hearing, and mother had two no-show tests during
this short period. The court properly could conclude from this
evidence that mother had a substance abuse problem at the time
of the hearing.
In addition to the explicit diagnosis of drug abuse during
pregnancy, which neither mother nor DCFS mentions, the record
contains substantial evidence from which the court could
conclude mother experienced “life-impacting effects of drug use”
and therefore engaged in substance abuse. (In re Rebecca C.,
supra, 228 Cal.App.4th at p. 726.) Mother admitted that she
turned to drugs to cope during difficult times in her life, including
the death of Z.’s father, her period of homelessness, and while she
was under the care of maternal great-cousin T. as a minor.
Mother purchased substances from “random people on the
street,” did not know what they contained, and “experiment[ed]”
despite knowing she was pregnant with Z. (See Christopher R.,
supra, 225 Cal.App.4th at pp. 1218-1219 [mother’s cocaine use
during the final stage of pregnancy and admitted drug use in the
past supported finding of substance abuse].) She acted so
erratically and aggressively with hospital staff that they ordered
drug testing for her, indicating that her substance use resulted in
social or interpersonal problems. T., who had known mother
since birth, also suggested that she would have concerns for
mother’s ability to care for Z. if mother did not test clean for a
significant amount of time.
Mother also argues that the record is devoid of evidence
that her substance abuse placed Z. at risk of harm. With respect
to a child of “tender years” like Z., who was less than two months
old at the time of the adjudication hearing, a “finding of
substance abuse is prima facie evidence of the inability of a
21
parent or guardian to provide regular care resulting in a
substantial risk of harm.” (Drake M., supra, 211 Cal.App.4th at
p. 767; accord, Christopher R., supra, 225 Cal.App.4th at p. 1219.)
The juvenile court specifically cited “the tender age of the
newborn child” when making its jurisdiction findings. Mother
does not address the import of this factor, particularly where she
would be Z.’s sole caretaker if the court released Z. to her.
“Indeed, her use of [marijuana and other substances] during the
last months of her pregnancy confirmed her poor judgment and
willingness to endanger her child[ ]’s safety due to substance
abuse.” (Christopher R., supra, 225 Cal.App.4th at p. 1219.) The
court’s finding that mother’s substance abuse placed Z. at risk of
harm was supported by substantial evidence.
D. Mental and Emotional Problems
Because we find that there was sufficient evidence to
support jurisdiction based on mother’s substance abuse, we need
not address mother’s contention that the court’s findings
regarding her mental and emotional problems were not
supported by substantial evidence. “When a dependency petition
alleges multiple grounds for its assertion that a minor comes
within the dependency court’s jurisdiction, a reviewing court can
affirm the juvenile court’s finding of jurisdiction over the minor if
any one of the statutory bases for jurisdiction that are
enumerated in the petition is supported by substantial evidence.
In such a case, the reviewing court need not consider whether
any or all of the other alleged statutory grounds for jurisdiction
are supported by the evidence.” (In re Alexis E. (2009) 171
Cal.App.4th 438, 451.) Nevertheless, we conclude that
substantial evidence supported this basis for jurisdiction as well.
22
DCFS alleged Z. was at risk of harm due to mother’s
“mental and emotional problems including aggression and a
diagnosis of Depression which renders the mother incapable of
providing regular care and appropriate supervision.” Mother
asserts that her depressive episodes were acute and related to the
deaths of loved ones, including her mother and boyfriend, and did
not pose any threat to Z. Mother entirely ignores the finding of
aggression, which was alleged in the petition and amply
supported by the record.
Mother acknowledged that she engaged in “aggressive
behaviors due to not knowing how to cope with life
circumstances.” Although she is to be commended for her efforts
to “manage [her] emotions better,” mother plainly struggled with
doing so. She behaved aggressively toward hospital staff and
repeatedly threatened to leave the hospital with Z. because she
“want[ed] to be freed.” Mother became angry when hospital staff
woke her up to check on her and Z., whom she failed to hold, feed,
or change, or visit in the nursery after she was detained. Mother
also became aggressive with the CSW, repeatedly insulting her
and raising her voice to the point of disrupting infants in the
nursery. Maternal great-cousin T. reported that mother had
suffered from aggression for a long time; she described mother as
“very aggressive” and “short-fused,” with “a very short patience
[sic]” and a disinclination to follow even simple house rules.
“The existence of a mental illness is not itself a justification
for exercising dependency jurisdiction over a child.” (In re
Joaquin C. (2017) 15 Cal.App.5th 537, 563.) However, the court
reasonably concluded that mother’s lack of “emotional control”
was likely to present a risk to Z., for whom mother was “going to
be caring . . . under difficult situations.” Mother’s longstanding
23
difficulties regulating her behavior, while understandable in light
of her difficult childhood, posed a danger to Z. Even when Z. was
newly born, mother was unable to meet Z.’s most basic needs.
Multiple nurses had to ask mother to calm down, and, when she
would not, had to call security to escort her from the scene. A
reasonable trier of fact could conclude that Z. would be at risk in
mother’s care due to mother’s aggressive behavior.
DISPOSITION
We dismiss mother’s challenges to the court’s compliance
with the Indian Child Welfare Act and disposition order. We
affirm the remainder of the court’s orders.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
24