In re I.K. CA2/1

Filed 1/27/21 In re I.K. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re I.K., a Person Coming B305495
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 18CCJP05754)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
E.M.,
Defendant and Appellant.
APPEAL from the jurisdictional order of the Superior Court
of Los Angeles County, Mary E. Kelly, Judge. Affirmed.
Mitchell Keiter, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, Acting County Counsel,
Kim Nemoy, Assistant County Counsel, and Sarah Vesecky,
Deputy County Counsel, for Plaintiff and Respondent.
____________________
Mother, E.M., appeals from the juvenile court’s
jurisdictional order taking jurisdiction over mother’s infant
daughter I.K. I.K.’s two older sisters have been dependents of
the juvenile court since before turning one year old. Mother
argues that the juvenile court erred in taking jurisdiction over
I.K. because no substantial evidence showed that mother posed a
current risk to I.K. We reject mother’s argument for two reasons.
First, because dependency jurisdiction is over the child, we must
affirm the jurisdictional order based on the uncontested
allegations sustained against father. Second, substantial
evidence here did support the juvenile court’s jurisdictional order
insofar as it sustained allegations against mother. There was
evidence, despite mother’s arguments to the contrary, that at the
time of the jurisdictional hearing, mother continued to suffer
from the same substance abuse that caused her to lose custody of
I.K.’s two older siblings and that mother’s substance abuse posed
a risk to I.K. We thus affirm the juvenile court’s jurisdictional
order.
BACKGROUND
1. Mother Lived in Foster Care Until She Absconded
With Her Eldest Child, A Dependent of the Juvenile
Court
Mother was born in 1999, and entered foster care at the age
of 12. Mother’s mother (maternal grandmother) used crystal
2
methamphetamine and mother witnessed domestic violence in
her family. Mother reported that her uncle touched her and that
maternal grandmother beat her. Mother started smoking
marijuana when she was 12 years old. Mother explained that she
used marijuana to treat her anxiety and panic attacks.
Mother’s eldest child, C.K., was born in November 2015.
The juvenile court took jurisdiction over C.K. because mother’s
marijuana abuse rendered mother unable to care for C.K.
Although the exact date is unclear, it is undisputed that mother
“abduct[ed]” C.K. The juvenile court had issued a warrant to
arrest mother, apparently for absconding with C.K. “Mother
reported that she spent time in jail until she returned [C.K.] to
DCFS[’s] care.”1
Eventually, the juvenile court terminated mother’s
reunification services with C.K. Mother reported that C.K. was
placed with her aunt, and mother was pleased with the
placement. Mother “didn’t want to take the chance of not
meeting her [C.K.’s] needs.”
The social worker responsible for C.K.’s dependency
reported that mother was “constant[ly] AWOLing.” The social
worker reported “mother’s history of being incapable of
maintaining stable housing and not being able to care for herself
demonstrates that she is not ready to care for a child.”
2. Mother’s Child, L.K., Dies
Mother’s second child, L.K. died in utero. Two days before
his death, mother tested positive for marijuana. Maternal
1 In the context of C.K.’s dependency case, a supplemental
petition alleging domestic violence between mother and father
was dismissed in the interest of justice.
3
grandmother reported that “mother and father were involved in a
physical altercation . . . which caused mother to miscarry.”
3. Mother’s Child, P.K., Is a Dependent of the Juvenile
Court
P.K. was born in 2018. The juvenile court assumed
jurisdiction over P.K. because of mother’s substance abuse. The
juvenile court sustained an allegation of general neglect after
mother smoked marijuana while holding P.K. When
investigating P.K.’s case, social workers observed that mother’s
home was “unkempt, filthy, messy, and unsuitable . . . for an
infant.”
At the time the current dependency proceedings
commenced, mother had monitored visits with P.K. Both C.K.
and P.K. were dependents of the juvenile court since they were
four or five months old.
4. DCFS Files a Petition Naming I.K.
On August 29, 2019, DCFS filed a Welfare and Institutions
Code section 300 petition concerning then two-month old I.K.2
The petition alleged that father failed to protect P.K. from
mother’s substance abuse. The petition further alleged that
father failed to protect P.K. when he should have known mother
had absconded with C.K. and should have known mother’s
whereabouts. The petition alleged that father failed to
participate in juvenile court ordered services.
The petition further alleged that mother “secreted” C.K.
from DCFS and the juvenile court and that C.K. is a dependent
2 Undesignated statutory citations are to the Welfare and
Institutions Code.
4
receiving permanent placement services due to mother and
father’s conduct. The petition further alleged that mother has a
history of substance abuse, including marijuana, which renders
mother incapable of providing regular care and supervision for
I.K. In addition, mother failed “regularly [to] submit to Juvenile
Court ordered random drug testing.” Finally, the petition alleged
that I.K.’s sibling was a dependent of the juvenile court based on
mother’s substance abuse.
5. DCFS’s Detention and Jurisdiction Reports
Prior to detention, I.K. resided with mother. Father did not
live in the same home as mother. The juvenile court ordered I.K.
detained from father only. The court permitted father monitored
visitation three times a week. The juvenile court ordered that
DCFS approve the monitor and that the visits occur in a DCFS
approved setting. The court ordered I.K. “released to the home of
mother.”
DCFS reported that mother regularly missed court ordered
testing for controlled substances. Mother missed three random
tests in July 2019, three tests in August 2019, two tests in
September 2019, and one test in October 2019. In six tests
between August 6, 2019 and October 2, 2019, however, she tested
negative.
During an interview with a social worker, mother reported
that she had stopped using marijuana in April 2019 (two months
before I.K.’s birth). Mother, however, admitted using marijuana
during the early stages of her pregnancy with I.K. Mother denied
smoking marijuana in the presence of her children. Mother
stated that she was diagnosed with depression and prescribed
medication, but took the prescribed medication only once or twice
because she did not like its side effects. Mother represented she
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participated in parenting classes. Mother reported the juvenile
court had previously ordered her to complete random drug
testing, individual counseling, and parenting classes.
A facilitator from wraparound services3 reported that
mother was diagnosed with major depressive disorder and
generalized anxiety. The facilitator stated mother had regularly
attended parenting classes and her parenting skills had
improved. Mother’s therapist reported that although mother had
enrolled in therapy, the therapist had “not ‘seen mother in a
while.’ ” The therapist also reported that mother had made
progress in therapy but the therapist was unwilling to share
mother’s therapeutic goals. The therapist believed mother could
care for I.K.
A social worker concluded: “Even though, mother is
enrolled in parenting, individual counseling and random drug
and alcohol testing, there are concerns regarding mother’s
extensive substance abuse history, in utero drug exposure to
child, mother’s failure to submit to random drug testing on a
regular consistent basis, and inconsistent participation with
individual counselling sessions and parenting. Given that
mother is breastfeeding [I.K.], it is imperative that mother
submits to random drug and alcohol test[ing] on a constant basis
to ensure that mother is maintaining her sobriety.” Social
workers further expressed concern that “[m]other seems unable
to recognize problems and threats that place the child’s safety at
3 “ ‘Wraparound services’ means community-based
intervention services that emphasize the strengths of the child
and family and includes the delivery of coordinated, highly
individualized unconditional services to address needs and
achieve positive outcomes in their lives.” (§ 18251, subd. (d).)
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risk, despite participation in services in the past and present (i.e.
Parenting Education program). Apparently, mother did not truly
benefit and/or internalize the knowledge obtained in the
parenting class given that mother was unable to recognize that
her in utero drug exposure could have detrimental effects on her
child’s physical and emotional health.”
6. First Amended Petition
On November 1, 2019, DCFS filed a first amended petition.
In addition to the allegations in the original petition, DCFS
alleged that mother has mental and emotional problems,
including depression and anxiety, that render her unable to care
regularly for I.K. The petition further alleged that mother uses
marijuana to self-medicate.
7. Second Amended Petition
In a second amended petition, DCFS added allegations that
I.K.’s home “was found to be in a filthy, unsanitary, unsafe and
hazardous condition. Such condition included presence of
rodents, trash, garbage, filthy clothes, and bottles of urine.” The
second amended petition averred mother and father have a
history of engaging in violent altercations that jeopardize I.K.’s
safety. According to the second amended petition, father has a
history of substance abuse, including marijuana, rendering him
incapable of caring for I.K.
8. Additional DCFS Reports Following the Amended
Petitions
An unidentified reporting party indicated that mother and
father were living together in a rented room. I.K. was still living
7
with mother at that time.4 Social workers were concerned
because father was supposed to have only monitored visits with
I.K. The unidentified caller reported that mother and father
exposed I.K. to marijuana smoke in the rented room. The caller
stated mother and father “trashed” the room they were renting,
and there was trash and blunt wraps (papers to roll marijuana)
on the floor. The caller also reported “father urinates in a bottle
and leaves the bottle in the room.” The caller stated there were
mice and dirty diapers in the room. The caller believed that
father left a dead mouse in his living room. The reporting party
was concerned that father left the heater on and that the trash in
the room might catch on fire.
When a social worker visited father’s home unannounced at
8 a.m., mother answered the door in her pajamas and “was
rubbing her eyes as if she just woke up.” Mother denied living
there. The social worker observed the home to be “disorganized,
dirty, messy” and containing I.K.’s clothing. Based on her
observations, the social worker concluded that mother was living
with father.
In January 2020, mother’s therapist reported that mother
regularly attended therapy and learned mindfulness exercises.
Mother was working on improving her stability and planned to
move into a shelter at an unspecified date. I.K. often attended
the therapy sessions with mother and appeared happy.
I.K.’s paternal great grandmother reported that mother
lived with her but did not always stay at paternal great
4The juvenile court denied DCFS’s request to detain I.K.
from mother.
8
grandmother’s home. At night, mother sometimes stayed with
father.
Mother reported that she attended therapy but was not
attending her random drug tests. Mother explained that she did
not attend the drug tests because she had lost her identification
card.
Mother did not appear for her scheduled drug tests on
January 3, January 8, January 16, January 17, January 18, or
January 22, 2020. Mother did not appear for drug tests
scheduled on March 6, March 10, or March 12, 2020 either.
9. Hearing on Jurisdiction
At the jurisdictional hearing regarding I.K., a social worker
testified that mother took parenting classes and participated in
individual therapy. I.K. appeared healthy when the social
worker observed her with mother.
The social worker testified that when she visited father’s
home, mother exited in pajama pants and the social worker
learned that mother had arrived at 1:00 a.m. and was still
present at approximately 8:15 a.m. The social worker also
testified that she learned mother and father had been residing in
father’s home since July 2019. On one visit, the social worker
was able to look inside the home and saw children’s toys and
clothing. She observed a bouncy chair and a bottle warmer. The
social worker testified that the home was unsanitary. There
were bags of clothing and trash on the floor and a heater on the
ground. The social worker described the home as cluttered,
making it difficult to walk around. The social worker observed
that mother’s and father’s names were listed on an eviction
notice.
9
Mother denied living with father. Mother testified that her
name may have been on the eviction notice because maternal
grandmother was a friend of father’s landlord. Mother testified
that social workers did not tell her she could not be at father’s
home until after the social worker saw her in father’s home.
Mother further testified that she had attended therapy
consistently since April 2019 except for a period when she was
changing therapists. Through dependency court services, mother
also received weekly assistance with her school work and
parenting issues.
Mother denied any domestic violence between her and
father. Mother testified she had not smoked marijuana since
April 2019. She admitted she did not always participate in her
court ordered random drug tests. According to mother, she did
not always have the required identification or paperwork.
Mother missed one test because she was in court. Mother
acknowledged that there were other missed tests and she did not
remember why she missed them. In response to questioning from
the court, mother testified she had two identifications but had
lost both of them.
Mother’s counsel requested that the juvenile court dismiss
the petition. Counsel argued that there was no current risk to
I.K. Mother’s counsel further argued that mother did not live in
father’s home. I.K.’s counsel similarly argued that mother posed
no current risk to I.K. I.K.’s counsel recognized that mother “was
at” father’s home and that the condition of the home was unsafe
for I.K., but argued that the unsafe condition did not pose a risk
to I.K. at the time of the jurisdictional hearing because father
was no longer living there. I.K.’s counsel acknowledged there
was evidence to sustain the allegations that father had a history
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of substance abuse rendering him unable to provide regular care
for I.K.
10. The Juvenile Court Assumed Jurisdiction Over I.K.
The juvenile court sustained the following allegations:
Father failed to protect P.K. from mother’s substance abuse.
Father failed to participate in court ordered services. I.K.’s
sibling is a current dependent of the juvenile court due to
mother’s substance abuse and father’s failure to protect the child.
Father has a history of substance abuse, including marijuana,
that renders him incapable of providing I.K. with regular care
and supervision.5 Mother has a history of mental and emotional
5 The court sustained many of the same or similar
allegations under section 300, subdivisions (b) and (j).
Section 300, subdivision (b)(1), provides in pertinent part: “The
child has suffered, or there is a substantial risk that the child will
suffer, serious physical harm or illness, as a result of the failure
or 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 from the conduct of the custodian with whom the child
has been left, . . . 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.”
Section 300, subdivision (j) provides: “The child’s sibling
has been abused or neglected, as defined in subdivision (a), (b),
(d), (e), or (i), and there is a substantial risk that the child will be
abused or neglected, as defined in those subdivisions. The court
shall consider the circumstances surrounding the abuse or
neglect of the sibling, the age and gender of each child, the nature
of the abuse or neglect of the sibling, the mental condition of the
parent or guardian, and any other factors the court considers
11
problems including depression and anxiety that interferes with
the mother’s ability to provide regular care for I.K. Mother has
failed to consistently participate in mental health services and
used marijuana to self-medicate in the past. I.K.’s home was
found to be in a filthy and hazardous condition. “Such a filthy
and unsanitary home environment established for the child by
the father, . . . and mother . . . endangers the child’s physical and
emotional health and safety . . . and places the child at risk of
physical and emotional harm . . . .”
The juvenile court explained that “the court’s concern
is . . . that this is a young mother, and she was in our system as a
child herself. She had a lot of difficulties. Her mother was
abusive. She [maternal grandmother] beat her [mother]. She
[maternal grandmother] used meth[amphetamine]. She
[maternal grandmother] abandoned her. So she [mother] didn’t
have a good role model for being a mother. So my heart goes out
to her for that. And she’s had some difficulties with her other
kids, and she is coming along. So I don’t want to defeat her. But
on the other hand, I want mother to understand, when we talk
about what to do in the future, . . . it’s not her [decision] to
determine whether she goes to testing or not. It’s not [for]
her . . . to decide whether she spends the night with somebody
else. But she has to make the choice that the priority is her
child . . . .”
11. Disposition
The juvenile court found that there were reasonable
measures that could prevent removal of I.K. from mother’s
probative in determining whether there is a substantial risk to
the child.”
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custody. The court permitted mother to retain custody of I.K.
The juvenile court ordered mother to take 10 random drug tests,
participate in individual counseling, and take additional
parenting classes.
The court removed I.K. from father “based on clear and
convincing evidence that father has not made any efforts to
engage in any services with his other two children, and he
has not engaged and not kept in touch with the social worker in
this case . . . .” Father did not appeal. Mother filed a timely
appeal.
DISCUSSION
Mother demonstrates no error in the juvenile court’s order
assuming jurisdiction over I.K. First, it is uncontested that the
juvenile court properly assumed jurisdiction over I.K. based on
the allegations against father. Second, mother’s challenge to the
sufficiency of the evidence lacks merit.
A. The Juvenile Court Did Not Err Because
Jurisdiction Over I.K. Based on Father’s Conduct is
Unchallenged
No one has challenged on appeal the juvenile court’s
taking jurisdiction over I.K. based on father’s conduct. We may
affirm the jurisdictional order if any ground for jurisdiction
supports the court’s jurisdictional order because juvenile court
jurisdiction is over the child and not the parents. (In re I.J.
(2013) 56 Cal.4th 766, 773.) Thus, even were we arguendo to
accept mother’s challenge to some of the grounds for jurisdiction,
we would affirm the juvenile court’s jurisdictional order.
In her reply brief, mother argues “[i]f the evidence did not
support the allegations against Mother, it did not support her
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case plan.” That is a non sequitur. The juvenile court may order
mother to participate in services regardless of whether the
sustained allegations concerned her or father. (In re D.L. (2018)
22 Cal.App.5th 1142, 1148.) The juvenile court “had the
authority to order a nonoffending parent to participate in
services. Section 362, subdivision (a) gives the court the
authority, once a child is declared a dependent, to ‘make any and
all reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of the child.’ ” (D.L., supra, at
p. 1148.)
No reasonable argument can be made that mother’s case
plan was unrelated to the uncontested reasons the juvenile court
took jurisdiction over I.K. Mother’s substance abuse is
intertwined with the uncontested allegations against father and
justifies the court’s order of 10 random tests for controlled
substances. It is undisputed that father did not protect P.K. from
mother’s substance abuse and that father’s failure to protect P.K.
placed I.K. at risk of serious harm. It is also undisputed that
mother’s marijuana abuse caused her to lose custody of I.K.’s two
sisters. Further, given that mother has lost custody of I.K.’s
sisters, I.K. would benefit from mother’s participation in
parenting classes and individual counseling, especially in light of
social worker reports that mother “did not truly benefit and/or
internalize the knowledge obtained in the parenting class” she
previously took. In short, the case plan is appropriate regardless
of whether mother is successful in contesting the allegations
against her. .
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B. Substantial Evidence Supported the Jurisdictional
Allegations Against Mother
We affirm the jurisdictional order for the independent
reason that substantial evidence supported the jurisdictional
allegations against mother. On appeal, mother argues that, at
the time of the jurisdictional hearing, there was no current risk of
harm to I.K. More specifically, she contends there was no
evidence of recent marijuana use and therefore no current
substantial risk of serious physical harm to I.K. According to
mother, “this Court must consider not Mother’s past marijuana
use or emotional health but the threshold question of whether
she has failed to supervise, protect, or provide regular care to
I.K.”
Under section 300, subdivision (b) and section 300,
subdivision (j) there must be current risk to the child to support
dependency jurisdiction. (In re Carlos T. (2009) 174 Cal.App.4th
795, 803; see ibid. [“[W]e must conclude that a finding of current
risk is required for jurisdiction under subdivisions (b)
and (j) . . . .”].) That does not mean that evidence of past abuse is
irrelevant. “Although section 300 generally requires proof the
child is subject to the defined risk of harm at the time of the
jurisdiction hearing [citations], the court need not wait until a
child is seriously abused or injured to assume jurisdiction and
take steps necessary to protect the child [citation]. The court
may consider past events in deciding whether a child presently
needs the court’s protection. [Citation.] 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 Christopher R.
(2014) 225 Cal.App.4th 1210, 1215–1216; In re Kadence P. (2015)
15
241 Cal.App.4th 1376, 1383–1384 [past events are relevant when
assessing jurisdiction].)
Our standard of review is familiar. “ ‘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 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.
[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., supra,
56 Cal.4th at p. 773.)
The premise of mother’s argument—that there was no
evidence of recent marijuana use—is inconsistent with the
record, which demonstrates at the time of the jurisdictional
hearing that mother had recently used marijuana. Mother
admitted to using marijuana when she was pregnant with I.K.
Shortly before the jurisdictional hearing, mother missed her tests
for controlled substances on January 3, January 8, January 16,
January 17, January 18, and January 22, 2020. Mother also did
not appear for any of her scheduled drug tests in March 2020,
including those days just before the trial court issued its
16
jurisdictional order. Although mother missed one test because
she was in court, she provided an inadequate excuse of losing her
identification for missing several other tests and no excuse for
missing the remainder. Missed tests without adequate
justification, as is the case here, allow us to presume that those
missed tests would have been positive. (In re Kadence P., supra,
241 Cal.App.4th at p. 1384; Jennifer A. v. Superior Court (2004)
117 Cal.App.4th 1322, 1343.)
Although marijuana use does not automatically support
jurisdiction (In re J.A. (2020) 47 Cal.App.5th 1036, 1050), in this
case, mother’s marijuana use rose to the level of abuse when it
caused her to lose custody of two children. (See In re Christopher
R., supra, 225 Cal.App.4th at p. 1218 [failure to fulfill major role
obligations in the home is one of several definitions of substance
abuse].)
Additionally, despite court-ordered random drug testing in
connection with P.K.’s case, mother continued to use marijuana
and regularly failed to show up for her drug tests. (See In re
Christopher R., supra, 225 Cal.App.4th at pp. 1218–1219.)
Mother exposed I.K. to marijuana in utero and to marijuana
smoke in father’s home. Finally, although mother attended
therapy, there was no evidence that she addressed her depression
and anxiety, which the juvenile court found caused her to “self
medicate” with marijuana. Thus, the juvenile court could infer
that mother’s marijuana abuse was likely to continue absent
juvenile court intervention. Mother’s argument that at the time
of the jurisdictional hearing, there was no substantial risk to I.K.
fails to acknowledge the full record and is thus unpersuasive.
(See In re Kadence P., supra, 241 Cal.App.4th 1376, 1385–1386.)
17
Mother argues that the record here “resembles” In re
David M. (2005) 134 Cal.App.4th 822, 829,6 in which the
appellate court reversed a jurisdictional order. We disagree. In
David M., the court concluded that evidence of the mother’s
mental and substance abuse problems and the father’s mental
problems, was never tied to any actual harm to the minor. (Ibid.)
In that case, however, there was uncontradicted evidence the
child was “healthy, well cared for, and loved” while living in a
“clean, tidy home.” (Id. at p. 830.) Mother had testified negative
for drugs approximately 18 times and had apparently valid
excuses for her missed tests. (Ibid.)
That is not the case here. Father’s home was cluttered
with trash, rodents, and dirty diapers. Although the record
shows that father was evicted from his home removing any risk
to I.K. based on the unsanitary condition of that specific home,
there was no evidence that either mother or father understood
the need to provide a safe home for I.K., including one 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.) Whether or not mother lived with father,
she visited father’s home with I.K. regularly, a home that mother
does not contest was “unsafe,” “unsanitary,” and “hazardous.” A
social worker observed I.K.’s toys and clothing in a home that
posed great risk to an infant unable to avoid the clutter, trash,
and dead rodent in the living space. These unhealthy conditions
also fit a pattern; mother’s home with P.K. was also “unkempt,
filthy, messy, and unsuitable . . . for an infant.” Mother,
6 Abrogated on a different ground in In re R.T. (2017)
3 Cal.5th 622, 628.
18
moreover, missed several drug tests with no excuse. This case
thus hardly “resembles” In re David M.
DISPOSITION
The juvenile court’s jurisdictional order is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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