In re K.R. CA2/3

Filed 12/16/21 In re K.R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re K.R. et al., Persons Coming B311121
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. Nos.
DEPARTMENT OF CHILDREN 20CCJP05378A,
AND FAMILY SERVICES, 20CCJP05378B
Plaintiff and Respondent,
v.
A.E.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Martha Matthews, Judge. Affirmed.
Lelah S. Fisher, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
The juvenile court sustained a petition under section 300
of the Welfare and Institutions Code,1 after finding A.E. (mother)
drove her child while under the influence of alcohol. Mother
challenges the sufficiency of the evidence supporting the
court’s jurisdictional findings. Specifically, she argues
there is insufficient evidence showing a current risk of harm
to her children as of the jurisdiction hearing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Los Angeles Department of Children and Family
Services (DCFS) received a report that mother was arrested for
driving 100 miles per hour while under the influence of alcohol.
The reporter said mother’s four-year-old daughter, Ky.R., was
in a car seat, but she was not properly restrained in it.
According to the police report of the arrest, around
1:35 a.m. on August 29, 2020, officers pulled mother over for
driving at an “extreme high rate of speed.” The officers smelled
alcohol inside the vehicle, and mother told them she drank one
and a half glasses of wine between 9 and 11 p.m. the night before.
Mother smelled of alcohol, and her eyes were red and watery.
She failed the field sobriety tests and her blood alcohol content
(BAC) was measured to be .13 percent.
During DCFS’s investigation, mother confirmed the
referral was true. She said she was visiting family members
that night and drank three glasses of wine starting around
9 or 10 p.m. Mother said she understood the severity of the
incident. She denied having alcohol abuse issues, but agreed
to enroll in an Alcoholics Anonymous (AA) program. Mother
1 Future statutory references are to the Welfare and
Institutions Code.
2
also agreed to weekly and on-demand alcohol tests. She tested
negative for alcohol on September 11, 2020.
Mother’s other child, six-year-old K.R., was with maternal
grandmother during the incident. K.R. said he had never seen
mother drink alcohol, and he expressed feeling happy and safe
at home. There were no signs that K.R. or Ky.R. were abused
or neglected.
Maternal grandmother said she was shocked when she
learned mother had been arrested. She said mother drinks
occasionally, but does not get drunk or drive while drinking.
Maternal grandmother described mother as loving and protective
of her children.
The children’s father reported that mother drinks
occasionally, but not heavily. He denied any knowledge that
mother has substance abuse issues, and he had never seen
her drive while under the influence of alcohol.
Paternal grandmother also had never seen mother drive
while under the influence of alcohol, and she had no concerns
about mother’s drinking. She described mother as attentive
to her children and a “ ‘good mother.’ ”
On October 9, 2020, DCFS filed a petition to declare Ky.R.
and K.R. dependents under section 300, subdivisions (b) and (j).
The petition alleged mother placed Ky.R. in a detrimental and
endangering situation by driving a vehicle at a high speed while
under the influence of alcohol, and failing to secure Ky.R. in a
child safety restraint seat. The petition further alleged mother’s
conduct created a detrimental home environment, which placed
both children at risk of harm.
At the October 14, 2020 detention hearing, the court
released the children to mother on the condition that she submit
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to random alcohol/drug tests and attend two AA meetings
per week.
On November 24, 2020, mother told a DCFS investigator
she “ ‘had a few drinks or two’ ” the night of her arrest, but was
not drunk while she was driving. Mother also said she did not
realize she was driving at 100 miles per hour. She claimed she
had never done anything like that before and was learning from
the experience. According to mother, she usually does not drink
around Ky.R., but she was “ ‘stressed’ ” and “ ‘going through
changes.’ ” She said she had not been contacted about her
criminal case.
Mother tested negative for drugs and alcohol on
December 7, 2020, but failed to appear for the next four tests.
Mother claimed she was not using alcohol because she was
pregnant, and she did not show up for the tests because her
name did not appear on the list to do so. As of March 1, 2021,
mother had attended only two AA meetings, one in early January
and one in early February.2
The court held a combined jurisdiction/disposition hearing
on March 5, 2021. Mother’s counsel urged the court to dismiss
the petition because there was not a current risk of harm to
the children. Counsel noted that mother understood the severity
of the situation, this was an isolated incident, and there was
no evidence showing she has a drinking problem.
The court sustained the petition, explaining it was
“difficult to understand” how the incident occurred if mother
2 The record shows mother was on a waitlist for an AA
program as of December 2, 2020. It is not clear when she was
accepted into the program.
4
did not have a drinking problem. The court further noted that
mother attended only two AA meetings and failed to appear
for alcohol tests, despite claiming to understand the seriousness
of the incident. The court also expressed skepticism of mother’s
claim that she drank only three glasses of wine the night of
the incident.
As to disposition, the court declared the children
dependents and released them to their parents’ custody after
finding there were reasonable services available to prevent
removal. The court signed a case plan requiring mother to
participate in a 12-step program, submit to weekly alcohol tests,
and attend individual counseling.
Mother timely appealed.
DISCUSSION
Mother contends there is insufficient evidence supporting
the juvenile court’s jurisdictional findings under section 300,
subdivisions (b) and (j).3
“ ‘In reviewing the jurisdictional findings . . . , we look
to see if substantial evidence, contradicted or uncontradicted,
supports them. [Citation.] In making this determination, we
draw all reasonable inferences from the evidence to support
3 On November 2, 2021, while this appeal was pending,
DCFS informed us that the juvenile court recently terminated
jurisdiction over the children. DCFS did not request that
we dismiss mother’s appeal as moot. We take judicial notice
of the court’s October 29, 2021 minute orders terminating its
jurisdiction. (Evid. Code, § 452, subd. (d).) Although the orders
may have mooted mother’s appeal, out of an abundance of
caution, we exercise our discretion to address her arguments
on the merits. (See In re C.C. (2009) 172 Cal.App.4th 1481,
1489.)
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the findings . . . 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.’ ” (In re R.T. (2017) 3 Cal.5th 622, 633.)
Under section 300, subdivision (b), the juvenile court may
exercise jurisdiction over a child when the child “has suffered,
or there is a substantial risk that the child will suffer, serious
physical harm or illness” as a result of the failure of his or her
parent to “adequately supervise or protect the child.” (§ 300,
subd. (b)(1).) Under section 300, subdivision (j), the court may
take jurisdiction over a sibling of a child who has been neglected
under section 300, subdivision (b) if there is a substantial risk
the sibling will also be neglected.
A jurisdictional finding may be based on a single episode
of endangering conduct if there is evidence showing the conduct
is likely to recur. (In re Yolanda L. (2017) 7 Cal.App.5th 987,
993; In re J.N. (2010) 181 Cal.App.4th 1010, 1026 (J.N.).)
Although evidence of past conduct may be probative of current
conditions, “[t]o establish a defined risk of harm at the time of
the hearing, there ‘must be some reason beyond mere speculation
to believe the alleged conduct will recur.’ ” (Yolanda L., at p. 993;
In re D.L. (2018) 22 Cal.App.5th 1142, 1146.) Whether a child
is still at risk due to a parent’s past conduct turns on whether
that conduct “is ongoing or likely to continue.” (In re Daisy H.
(2011) 192 Cal.App.4th 713, 717; Yolanda L., at p. 993.)
“In evaluating risk based upon a single episode of
endangering conduct, a juvenile court should consider the nature
of the conduct and all surrounding circumstances. It should also
consider the present circumstances, which might include, among
other things, evidence of the parent’s current understanding of
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and attitude toward the past conduct that endangered a child,
or participation in educational programs, or other steps taken,
by the parent to address the problematic conduct in the interim,
and probationary support and supervision already being provided
through the criminal courts that would help a parent avoid a
recurrence of such an incident. The nature and circumstances
of a single incident of harmful or potentially harmful conduct
may be sufficient, in a particular case, to establish current risk
depending upon present circumstances.” (J.N., supra, 181
Cal.App.4th at pp. 1025–1026.)
Here, the juvenile court took jurisdiction over the children
after finding mother drove Ky.R. at 100 miles per hour while
intoxicated. Mother further increased the risk to the child
by not properly securing her in a car seat. Mother does not
challenge these findings. She also concedes the incident was
extremely serious, as there was a very real risk that Ky.R.
would be severely injured or killed.
Nevertheless, mother insists the court erred by taking
jurisdiction over the children because there is insufficient
evidence to establish a substantial risk that a similar incident
will recur. In support, she points out that she consistently
expressed an understanding of the severity and seriousness of
her conduct, tested negative for alcohol, attended AA meetings,
and stopped drinking alcohol after her arrest. In addition,
DCFS reported her children were comfortable, happy, and
healthy in her care, and none of her relatives expressed concerns
about her ability to parent. Mother also insists there is no
evidence that she drinks regularly, has a substance abuse issue,
or engaged in similar conduct in the past.
7
Mother contends this case is similar to J.N., supra, 181
Cal.App.4th 1010, in which the court reversed jurisdictional
findings premised on a single incident of drunk driving. There,
the father drove under the influence with his three children and
intoxicated wife. The father crashed into a light pole, injuring
two of the children, and both parents were taken into custody.
(Id. at pp. 1014–1015.) The reviewing court recognized the
“profound seriousness of the parents’ endangering conduct,”
but concluded there was no evidence from which to infer a
substantial risk that their behavior would recur. (Id. at p. 1026.)
The court noted the parents were remorseful, loving, and willing
to learn from their mistakes. (Ibid.) There was also no evidence
of ongoing substance abuse, or anything else indicating the
parents’ “understanding of the risks of inappropriate alcohol
use” was “so materially deficient” to render them “unable
‘to adequately supervise or protect’ the children.” (Ibid.)
Further, as of the jurisdiction hearing, the father was
incarcerated, and the criminal court had placed the mother
under supervised release and ordered her to complete
substance abuse and parenting programs. (Ibid.)
DCFS argues this case more closely resembles In re M.R.
(2017) 8 Cal.App.5th 101 (M.R.), which also involved a single
incident of drunk driving. In M.R., the court took jurisdiction
over two children after finding their mother drove 80 miles
per hour with a BAC of .14 percent while the children were not
properly restrained by seat belts. (Id. at p. 103.) The father was
a passenger in the car and also intoxicated. The parents initially
agreed to cooperate with DCFS. (Id. at p. 104.) Later, however,
they insisted the mother was not drunk and claimed they did
not need services. (Id. at p. 105.) As of the jurisdiction hearing,
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the mother had completed three parenting classes and planned
to enroll in substance abuse and individual counseling. (Id. at
p. 106.)
In affirming the jurisdictional findings, the Court of Appeal
distinguished J.N. primarily on the basis that the parents’
minimization of the mother’s conduct “call[ed] into question
their general judgment.” (M.R., supra, 8 Cal.App.5th at p. 109.)
The court further noted the parents’ acceptance of responsibility
worsened over time, the mother had not participated in an
alcohol education program, and the parents had engaged in
a prior alcohol-related episode of domestic violence around
four years earlier. (Id. at pp. 104, 109–110.)
We agree with DCFS that this case more closely resembles
M.R. than J.N. Like the parents in M.R., mother minimized
the extent of her drinking on the night of her arrest, and her
acceptance of responsibility seemed to diminish over time.
According to the police report, mother smelled of alcohol, failed
field sobriety tests, and had a BAC of .13 percent, well over
the legal limit to drive. Despite this, she told the officers she
drank only one and a half glasses of wine several hours earlier.
Mother subsequently gave a somewhat more reasonable estimate
of her drinking, telling a social worker she had three glasses of
wine that night. A few months later, however, mother seemed
to backtrack, inexplicably claiming she only “ ‘had a few drinks
or two’ ” and was not drunk while she was driving. Mother’s
minimization of her conduct and insistence that she was not
drunk, despite overwhelming evidence to the contrary, calls into
question her general judgment. (See M.R., supra, 8 Cal.App.5th
at p. 109; see also In re Gabriel K. (2012) 203 Cal.App.4th 188,
197 [“One cannot correct a problem one fails to acknowledge.”].)
9
The juvenile court could also reasonably conclude that,
like the parents in M.R., mother had not made a serious effort to
resolve whatever issues led her to drive Ky.R. while intoxicated.
Mother suggested she drove while drunk because she was
stressed and “ ‘going through changes,’ ” but she offered no plan
for how she intended to cope with those issues in the future.
Although mother enrolled in an AA program, she attended
only two meetings over the course of several months. Mother
points out that she attended the same number of AA meetings
as the father in J.N. While true, the father in J.N. also enrolled
in a non-AA substance abuse prevention program, something
mother did not do. (J.N., supra, 181 Cal.App.4th at p. 1015,
fn. 4.) Further, unlike the parents in J.N., mother was not
subject to criminal court orders or supervision that might help
prevent a recurrence.4
There is also evidence that mother continued to drink
alcohol after her arrest, despite her claims otherwise. As of the
jurisdiction hearing, mother had missed her four most recent
alcohol tests, which the court could consider to be positive.5
4 Mother suggests she will be subject to criminal court
supervision in the future given she admitted driving while
intoxicated. Even if true, the record does not indicate when
that supervision will begin. Mother, in fact, told DCFS she
had not heard from the criminal court and did not know the
status of her case as of November 2020.
5 The juvenile court erroneously remarked at the hearing
that mother did not appear for any alcohol tests. In fact, mother
appeared and tested negative for alcohol in September and
December 2020. However, given the timing and frequency of
mother’s missed tests, we are confident the court would have
sustained the petition had it considered the negative tests.
10
(See Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322,
1343 [“we must consider the missed [drug] tests to be positive
tests”].) Contrary to mother’s suggestions, the court was not
required to accept her excuses for failing to appear, or her
insistence that she stopped drinking alcohol after her arrest.
Indeed, given mother’s dubious claims about the extent of her
drinking the night of her arrest, the court could reasonably
conclude she lacked all credibility on the subject of her alcohol
use.
Mother suggests her failure to attend more AA meetings
and submit to alcohol testing should not be used against her
because the juvenile court could not order her to participate
in services before taking jurisdiction over the children. (See
In re E.E. (2020) 49 Cal.App.5th 195, 209 [“before jurisdiction,
the court can issue . . . orders directing the social services agency
to provide services, but it cannot order or otherwise compel the
parent to cooperate with the agency”].) While mother is correct
that the court could not order her to participate in services, it
was free to use her failure to do so as evidence at the hearing
on the petition. (Ibid.)
We acknowledge there is evidence from which the juvenile
court could have found mother’s conduct is not likely to recur.
On appeal, however, we must view the evidence in the light
most favorable to the court’s determinations. (In re R.T., supra,
3 Cal.5th at p. 633.) For the reasons discussed above, there is
substantial evidence showing an ongoing risk to both children.
The court, therefore, properly sustained the petition under
section 300, subdivisions (b) and (j).
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DISPOSITION
We affirm the juvenile court’s orders.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
WINDHAM, J.

Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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