In re Andie A. CA2/7

Filed 12/13/21 In re Andie A. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re ANDIE A. et al., Persons B313312
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No.
21CCJP01052A-D)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
MARINA F.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Terry T. Truong, Juvenile Court Referee.
Affirmed.
Johanna R. Shargel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Kimberly Roura, Senior Deputy
County Counsel, for Plaintiff and Respondent.
_____________________________________
Marina F., the mother of now-12-year-old Andie A.,
10-year-old Albert A., III (Albert), six-year-old Benjamin A. and
10-month-old Timothy A., appeals the juvenile court’s jurisdiction
finding and disposition order declaring the children dependents
of the court after the court sustained a petition pursuant to
Welfare and Institutions Code section 300, subdivision (b)(1). 1
Marina contends the court’s jurisdiction finding as to her was not
supported by substantial evidence and the court abused its
discretion by ordering her to participate in parenting classes and
individual counseling. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Petition
In late January 2021 the Los Angeles County Department
of Children and Family Services (Department) received a report
Marina had tested positive for marijuana at the time of Timothy’s
birth. Timothy tested negative for marijuana at birth, but
further testing on his umbilical cord blood was positive for
marijuana. Marina admitted to the hospital social worker that
she had smoked marijuana until she found out she was pregnant
with Timothy, which was not until she was 24 weeks pregnant.
1 Statutory references are to this code.
2
Marina explained she and the children’s father, Albert A., Jr.
(Father), smoked marijuana to alleviate pain. They did not
smoke in the presence of the children. The hospital social worker
stated Marina was bonding well with Timothy and was
breastfeeding.
A Department social worker met with the family on
January 25 and 26, 2021 at the motel where they were living.
The family had previously been living with Marina’s mother,
Anna G. However, other minor relatives who were under the
supervision of the Department lived in the home, and Marina and
Father could not get approval from the Department to reside
there due to Marina’s and Father’s criminal records. Accordingly,
they moved out in the summer of 2020 and had been unhoused
since.
Marina told the social worker she had smoked marijuana
regularly but stopped when she learned she was pregnant with
Timothy. She believed the positive test was due to marijuana
still being in her system from her prior use approximately
three months earlier. She said she was upset about the positive
test and “never thought that it would be an issue.” When she
was smoking, Marina kept her pipe in a backpack away from the
children. The social worker observed Marina was calm, rational
and cooperative and appeared to be bonding appropriately with
Timothy.
Father told the social worker he smoked marijuana every
day for recreational purposes. He said he kept his pipe in the car
and did not smoke in front of the children. He confirmed Marina
had not smoked marijuana since learning she was pregnant with
Timothy. Father stated he had been sober for 14 years and
rarely drank alcohol. However, the social worker later learned
3
Father had been arrested in December 2020 for driving under the
influence of alcohol. Marina, who was approximately
eight months pregnant at the time, had been in the car with
Father when they got into an altercation with another driver and
police were called. Father and Marina maintained the police
report was incorrect and Marina had been the one driving.
The social worker interviewed Andie and Albert, who both
stated their parents argued and yelled but were not physically
violent. Andie said Father smoked cigarettes, but she did not
know what kind. He typically smoked in the car and would have
the children “wait somewhere else.” She said Marina also
smoked but she did not know the last time her mother smoked.
Albert said his parents did not do drugs but Father smoked
cigarettes outside.
The social worker interviewed Anna on March 3, 2021.
Anna stated Marina had used marijuana daily until learning she
was pregnant with Timothy. Anna expressed her belief Father
was abusive toward Marina based on marks and bruises Anna
had seen on Marina’s face. Marina later told the social worker
the bruises were a result of her work as a dog groomer.
The parents agreed to on-demand drug testing by the
Department. Marina failed to appear for a test on
February 11, 2021 and tested positive for low levels of marijuana
on February 17, 2021. Father tested positive for marijuana on
February 11, 2021.
On March 5, 2021 the Department filed a nondetain
petition pursuant to section 300, subdivisions (a) and (b)(1),
alleging the parents had a history of violent altercations that
endangered the children’s physical health and safety and Marina
had a history of substance abuse and was a current abuser of
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marijuana, which interfered with her regular care and
supervision of the children. In a separate count the Department
alleged Timothy had tested positive for marijuana at birth as a
result of unreasonable acts by Marina that placed Timothy at
risk of physical harm. The Department also alleged Father had a
history of substance abuse and was a current abuser of
marijuana and alcohol, which rendered him incapable of
providing regular care for the children.
At the March 10, 2021 hearing on the petition the court
found Father was the presumed father of the children. The
children were released to their parents under the temporary
supervision of the Department. The Department was ordered to
provide services, including drug testing for the parents.
2. The Jurisdiction/Disposition Report
The Department filed a jurisdiction/disposition report on
April 23, 2021. The Department stated it had not yet been able
to conduct additional interviews with the family but was
concerned by the parents’ “denial and gross lack of insight
regarding alleged substance abuse.”
An addendum report filed May 5, 2021 contained a
summary of a follow-up interview with Marina. Marina again
stated she had not smoked marijuana since learning she was
pregnant with Timothy in November 2020. She believed her
positive tests in late January and February 2021 were due to her
previous marijuana use. She said the positive tests were
“frustrating; I didn’t expect him (Baby Timothy) to have it in his
system. I thought it was enough time to be out of my system.”
Marina explained she would smoke marijuana when she got
frustrated to help her calm down. She had not been smoking
recently because she was breastfeeding. Marina stated the
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longest period she had refrained from smoking was during her
pregnancy with Andie. Marina also admitted she had a temper
and was working on having more patience with Father and the
children.
An addendum report filed June 3, 2021 contained a
summary of a follow-up interview with Andie. Andie stated she
knew marijuana was a drug and it looked like broccoli. When
asked whether her parents smoked marijuana, she answered,
“Yes, my mom not so much but my dad, kinda.” Andie said she
had seen Father smoke marijuana in the car, “They [the parents]
ask us to get out of the car; they can see us. We are in a safe
place, either by a tree or a rock. We mess with each other and
play around.” She said she had not seen her parents act
strangely after smoking.
In the time since the detention hearing Father had tested
positive for marijuana on March 18, 2021 and failed to appear for
four tests between March 17, 2021 and May 14, 2021. Marina
tested negative on March 18, 2021 and May 11, 2021 but failed to
appear for three tests between April 26, 2021 and May 19, 2021.
3. The Jurisdiction/Disposition Hearing
At the continued jurisdiction hearing on June 3, 2021
Marina’s counsel asked the court to dismiss the petition, arguing
there was no evidence Marina had a substance abuse issue and,
even if she was using marijuana, her positive tests showed
extremely low levels in her system. Marina’s counsel also argued
there was no evidence any substance use interfered with her
ability to care for the children. Father’s counsel also requested
the petition be dismissed.
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Minors’ counsel requested the court sustain the petition on
the substance abuse counts, arguing the parents had been
evasive and unwilling to be interviewed initially.
The court amended the petition by interlineation, removing
the allegation Marina was a current abuser of marijuana, adding
that her history of substance abuse was unresolved and including
Timothy’s positive toxicology result in the allegation regarding
Marina’s substance abuse. As amended, the allegation states, in
part, that Marina “has an unresolved history of substance abuse
including marijuana use. The child Timothy [A.] had a positive
toxicology screen for marijuana at birth.” The court dismissed
the counts alleging domestic violence and the separate count
concerning Timothy’s positive toxicology test. The court
sustained, as amended, the counts regarding Marina’s and
Father’s substance abuse.
In explaining its ruling the court stated that, despite
Marina’s denials, her testing history did not support the
conclusion she had stopped smoking marijuana. The court
stated, “[Marina] has so many no shows that it is unclear to this
court whether she did, in fact, stop and she is telling the truth to
the social workers and this court.”
Turning to disposition Marina’s counsel objected to any
parenting or counseling requirements and argued separate
programs would be financially burdensome.
The juvenile court declared the children dependents of the
court and ordered them released to their parents’ custody under
the supervision of the Department with family maintenance
services. Marina was ordered to complete parenting classes and
individual counseling, as well as on-demand or random drug
testing.
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DISCUSSION
1. Governing Law and Standard of Review
The purpose of section 300 “is to provide maximum safety
and protection for children who are currently being physically,
sexually, or emotionally abused, being neglected, or being
exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.”
(§ 300.2; see In re A.F. (2016) 3 Cal.App.5th 283, 289; In re
Giovanni F. (2010) 184 Cal.App.4th 594, 599.) In addition, the
Legislature has declared, “The provision of a home environment
free from the negative effects of substance abuse is a necessary
condition for the safety, protection and physical and emotional
well-being of the child.” (§ 300.2.)
Section 300, subdivision (b)(1), allows a child to be
adjudged a dependent of the juvenile court when “[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 the willful or negligent failure of the
child’s parent or guardian to adequately supervise or protect the
child . . . .” A jurisdiction finding under section 300,
subdivision (b)(1), requires the Department to prove
three elements: (1) the parent’s or guardian’s neglectful conduct
or failure or inability to protect the child; (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; In re Joaquin C. (2017) 15 Cal.App.5th
537, 561; see In re R.T. (2017) 3 Cal.5th 622, 624
[“section 300(b)(1) authorizes dependency jurisdiction without a
8
finding that a parent is at fault or blameworthy for her failure or
inability to supervise or protect her child”].)
Although section 300 requires proof the child is subject to
the defined risk of harm at the time of the jurisdiction hearing
(In re D.L. (2018) 22 Cal.App.5th 1142, 1146), the court need not
wait until a child is seriously abused or injured to assume
jurisdiction and take steps necessary to protect the child. (In re
Kadence P. (2015) 241 Cal.App.4th 1376, 1383; In re N.M. (2011)
197 Cal.App.4th 159, 165.) The court may consider past events in
deciding whether a child currently needs the court’s protection.
(In re J.N. (2021) 62 Cal.App.5th 767, 775; In re Christopher R.
(2014) 225 Cal.App.4th 1210, 1215-1216; In re N.M., at p. 165.) A
parent’s “‘[p]ast conduct may be probative of current conditions’ if
there is reason to believe that the conduct will continue.”
(In re S.O. (2002) 103 Cal.App.4th 453, 461; accord, Kadence P.,
at p. 1384.)
Upon finding a child is a dependent of the juvenile court,
the court “may direct any reasonable orders to the parents . . . as
the court deems necessary and proper,” including requiring
participation in counseling, education and treatment programs.
(§ 362, subd. (d); In re Briana V. (2015) 236 Cal.App.4th 297, 311
[“‘[t]he juvenile court has broad discretion to determine what
would best serve and protect the child’s interests and to fashion a
dispositional order accordingly’”]; In re Daniel B. (2014)
231 Cal.App.4th 663, 673 [same].)
“‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. “In making this determination, we draw all
reasonable inferences from the evidence to support the findings
9
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 province 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.”’” (In re
I.J. (2013) 56 Cal.4th 766, 773.) We 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. (Ibid.;
accord, In re I.C. (2018) 4 Cal.5th 869, 892.)
We review the court’s orders directing a parent to
participate in counseling, education and treatment programs for
abuse of discretion. (See In re Briana V., supra, 236 Cal.App.4th
at p. 311.)
2. The Jurisdiction Finding Is Reviewable
Marina does not challenge the juvenile court’s finding
regarding Father. That finding provides an independent basis for
affirming dependency jurisdiction over the children regardless of
any alleged error in the finding as to Marina. (In re I.A. (2011)
201 Cal.App.4th 1484, 1492 [jurisdiction finding involving one
parent is good against both; “‘“the minor is a dependent if the
actions of either parent bring [him or her] within one of the
statutory definitions of a dependent”’”]; see In re M.W. (2015)
238 Cal.App.4th 1444, 1452; In re Briana V., supra,
236 Cal.App.4th at pp. 310-311.) As a result, even if we were to
strike the finding regarding Marina, the juvenile court would still
be authorized to exercise jurisdiction over the children and to
enter all reasonable orders necessary to protect them, including
orders binding on Marina that address conduct not sustained in
10
the petition. (Briana V., at p. 311; I.A., at p. 1492; see generally
§ 362, subd. (a) [the juvenile court “may make any and all
reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of the child”].)
Although acknowledging this general principle of
justiciability, Marina asks us to exercise our discretion to reach
the merits of her challenge to the jurisdiction finding, which
serves as the basis for the disposition order also challenged by
her on appeal. We agree it is appropriate to do so in this case.
(See In re D.P. (2015) 237 Cal.App.4th 911, 917; In re J.C. (2014)
233 Cal.App.4th 1, 4; In re Quentin H. (2014) 230 Cal.App.4th
608, 613.)
3. Substantial Evidence Supports the Jurisdiction Finding
as to Marina Under Section 300, Subdivision (b)(1)
Marina does not deny her past frequent use of marijuana
but contends the evidence did not establish she was currently
abusing marijuana or her children were at risk of harm at the
time of the jurisdiction hearing.
In arguing the Department failed to present evidence of her
current substance abuse, Marina relies on her statements to
social workers that she had ceased using marijuana in November
2020, which was corroborated by Father and Anna. Further, she
argues her positive drug test in February 2021 showed low levels
of marijuana and her test in May 2021 was negative.
The positive drug tests in January and February 2021
followed by two negative tests in March and May 2021 could
certainly support the inference Marina had ceased, or at least
decreased, her marijuana usage once learning she was pregnant
with Timothy. However, the contrary inference is also
reasonable—the presence of marijuana in Marina’s system in late
11
January and February 2021, even at low levels, reasonably
supports the inference Marina had not been truthful with the
social workers and had used marijuana more recently than she
admitted. Marina’s four missed drug tests in February, April and
May 2021 further support the inference she continued to use
marijuana.2 (See In re E.A. (2018) 24 Cal.App.5th 648, 657, fn. 6
[“[c]ommon sense suggests that a parent who consistently refuses
to drug test without an adequate explanation does so because he
or she knows the results will show substance abuse”]; In re
Natalie A. (2015) 243 Cal.App.4th 178, 186 [missed drug tests
supported “reasonable inference . . . that father’s marijuana use
was more frequent than the one admitted instance”]; In re
Christopher R., supra, 225 Cal.App.4th at p. 1217 [missed drug
test “properly considered the equivalent of a positive test
result”].)
Even if the evidence supported a finding of recent
marijuana use, Marina argues, there was no evidence of
2 Marina argues the court improperly relied on her
four missed drug tests because she “was not obligated to
participate in drug testing prior to jurisdiction having been
assumed.” This argument is unpersuasive. It is true that “before
the juvenile court takes jurisdiction over a child by finding [him
or her] to be a person described by section 300, the court may not
order a parent to cooperate with the social services agency,
engage in services, or submit to alcohol or drug testing.” “A
parent’s participation in services, whether before jurisdiction and
disposition or after, is always voluntary.” (In re E.E. (2020)
49 Cal.App.5th 195, 208, 209.) However, “[t]hat is 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.’” (Id. at p. 209.)
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substance abuse.3 Marina is correct that a parent’s use of drugs
or alcohol, standing alone, is insufficient to support dependency
3 In In Drake M. (2012) 211 Cal.App.4th 754, 766, upon
which Marina primarily relies, Division Three of this court held,
for purposes of section 300, subdivision (b), a finding of substance
abuse “must be based on evidence sufficient to (1) show that the
parent or guardian at issue had been diagnosed as having a
current substance abuse problem by a medical professional or
(2) establish that the parent or guardian at issue has a current
substance abuse problem as defined in the DSM-IV-TR.” After
the decision in Drake M. the DSM-IV-TR’s definition of
“substance abuse” was replaced in the Diagnostic and Statistical
Manual of Mental Disorders, Fifth Edition (DSM-5) by a more
broadly defined classification of “substance use disorders,” which
combines substance abuse and dependence. (See In re
Christopher R., supra, 225 Cal.App.4th at p. 1218, fn. 6.) “DSM-5
identifies 11 relevant criteria, including cravings and urges to
use the substance; spending a lot of time getting, using, or
recovering from use of the substance; giving up important social,
occupational or recreational activities because of substance use;
and not managing to do what one should at work, home or school
because of substance use. The presence of two or three of the
11 specified criteria indicates a mild substance use disorder; four
or five indicate a moderate substance use disorder; and six or
more a severe substance use disorder.” (Ibid.) As we held in
Christopher R., “We recognize the Drake M. formulation as a
generally useful and workable definition of substance abuse for
purposes of section 300, subdivision (b). But it is not a
comprehensive, exclusive definition mandated by either the
Legislature or the Supreme Court, and we are unwilling to accept
[the] argument that only someone who has been diagnosed by a
medical professional or who falls within one of the specific
DSM-IV-TR [or DSM-5] categories can be found to be a current
substance abuser.” (Christopher R., at p. 1218.)
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jurisdiction under section 300, subdivision (b). (In re Destiny S.
(2012) 210 Cal.App.4th 999, 1003 [“[i]t is undisputed that a
parent’s use of marijuana ‘without more,’ does not bring a minor
within the jurisdiction of the dependency court”]; In re Alexis E.
(2009) 171 Cal.App.4th 438, 452 [“it is true that the mere use of
marijuana by a parent will not support a finding of risk to
minors”].) Here, however, substantial evidence supported the
juvenile court’s finding Marina’s marijuana use rose to the level
of substance abuse. Marina admitted to smoking marijuana
regularly over the last decade, and her mother stated Marina
smoked daily. The longest Marina had abstained from marijuana
use was when she was pregnant with Andie 12 years earlier.
Marina gave shifting explanations for her use, telling one social
worker it was for pain management and another it was to calm
her when she was frustrated. Marina did not appear to
comprehend the risks associated with her marijuana use during
pregnancy and indicated she continued to abstain only because
she was breastfeeding. Even when under Department scrutiny
she continued to test positive and failed to appear for testing.
This lack of insight into the effects of her marijuana use and
apparent inability to curtail her use reasonably supported a
finding of substance abuse.
Marina additionally argues there was insufficient evidence
to establish her use of marijuana interfered with her ability to
properly care for the children. Specifically, Marina argues there
had been no allegation of harm to the children and they appeared
to be happy, healthy and developmentally appropriate. Marina’s
argument ignores that, with respect to a child of “tender years,”
“‘the finding of substance abuse is prima facie evidence of the
inability of a parent or guardian to provide regular care resulting
14
in a substantial risk of harm.’” (Christopher R., supra,
225 Cal.App.4th at p. 1219; accord, In re Kadence P., supra,
241 Cal.App.4th at p. 1385.) Because Benjamin and Timothy
were six years old or younger at the time of the jurisdiction
hearing, the finding of substance abuse effectively created a
presumption that Marina was unable to provide appropriate care
for them—a presumption reinforced by evidence Marina and
Father smoked marijuana in the car while their young children
played “by a tree or a rock.” Marina contends the “undisputed
fact that whenever parents did smoke, it was outside the
children’s presence, in their car” exhibited a “judicious approach
to marijuana use” that “removed any risk” of the children
accidentally ingesting marijuana or being exposed to second hand
smoke. This argument fails to acknowledge that the children
were left without a sober caretaker and, unless the car were
parked outside where the family lived, the children would have
had to re-enter the car after it had been filled with marijuana
smoke and would have been driven away by a parent who was
under the influence of marijuana. This evidence was a sufficient
link between Marina’s marijuana abuse and the risk of harm to
the children to support the jurisdiction finding. (See Kadence P.,
at pp. 1384-1385 [mother’s continuous substance abuse and
attempts to conceal it placed infant daughter at substantial risk
of harm]; Christopher R., at pp. 1219-1220 [father’s persistent
drug use rendered him incapable of providing regular care for
infant child].)
4. The Disposition Order as to Marina Was Proper
Marina contends the juvenile court abused its discretion in
ordering her to complete both parenting classes and individual
counseling, arguing she should have been allowed to address any
15
parenting issues as part of her individual counseling. Marina
argues the dual requirement is “unduly burdensome for a mother
of four young children, navigating both homelessness and a
global pandemic.”
“Juvenile courts should be mindful of the burdens their
disposition orders impose on parents already grappling with
difficult conditions and circumstances. However, the paramount
concern always must be the child’s best interests, and we cannot
reverse a disposition order reasonably fashioned to eliminate the
conditions that led to dependency jurisdiction, no matter how
burdensome its requirements may seem from the parent’s
perspective.” (In re D.P. (2020) 44 Cal.App.5th 1058, 1071-1072.)
Here, given Marina’s statement she smoked marijuana to
deal with her frustration, individual counseling was a reasonable
requirement, especially given Marina’s circumstances. The
requirement that parenting classes be completed separately
reasonably ensures sufficient attention can be paid to Marina’s
ability to deal with her frustration and any anger issues rather
than combine the services and risk diverting attention from
individual counseling to deal with parenting issues. Far from
being arbitrary or capricious, the juvenile court’s order was
reasonably related to the care and protection of the children.
DISPOSITION
The juvenile court’s jurisdiction findings and disposition
order are affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
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