In re K.B.

Filed 1/29/21 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re K.B. et al., Persons Coming B305420
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 20CCJP00282A–C)
AND FAMILY SERVICES,
ORDER MODIFYING
Plaintiff and Respondent, OPINION AND DENYING
PETITION FOR
v. REHEARING
E.N. et al., [NO CHANGE IN
JUDGMENT]
Defendants and Appellants.
THE COURT:
IT IS ORDERED that the opinion in the above-entitled
matter filed on January 5, 2021, be modified as follows:
1. On page 9, the second paragraph of section II, from
“ ‘[W]hen a statute requires . . . ’ ” to “We apply that
standard here” is deleted.
2. On page 16, the second paragraph of section III.C is deleted
and replaced as follows:
We must determine whether the record
contains substantial evidence from which a
reasonable trier of fact could find the existence of
that fact to be highly probable. (In re V.L. (2020) 54
Cal.App.5th 147, 149.)
Plaintiff and Respondent’s petition for rehearing is denied.
[There is no change in the judgment.]
____________________________________________________________
BIGELOW, P. J. GRIMES, J. WILEY, J.
2
Filed 1/5/21 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re K.B. et al., Persons Coming B305420
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 20CCJP00282A–C)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.N. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Marguerite D. Downing, Judge. Affirmed.
Janette Freeman Cochran, under appointment by the Court
of Appeal, for Defendant and Appellant E.N.
Gina Zaragoza, under appointment by the Court of Appeal,
for Defendant and Appellant M.B.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Melania Vartanian, Deputy County
Counsel, for Plaintiff and Respondent.
_______________________
The juvenile court exercised jurisdiction over mother M.B.’s
three children, K.B. (daughter, age 14), J.B. (son, age 10), and
J.N. (son, age seven), and ordered them removed from their
parents. (We refer to the children by their initials to protect their
anonymity. (Cal. Rules of Court, rule 8.401(a)(2).)) The mother
challenges the juvenile court’s orders regarding all three
children. E.N., the presumed father of J.N., challenges the orders
with respect to J.N. We affirm. Statutory references are to the
Welfare and Institutions Code.
I
We summarize some background about the parents,
beginning with the mother and then moving to the father.
A
The mother tested positive for methamphetamine and
marijuana during a hospital visit in November 2019 while 18
weeks pregnant. The mother claimed to be unaware of the
pregnancy. (The mother ultimately miscarried this pregnancy.)
The reporting party was concerned the mother was unable to care
for her other children as she was “out of it,” could not follow the
conversation, kept falling asleep, and looked homeless. The
mother initially denied any substance use, but later admitted she
had used methamphetamine three days earlier. A week later, the
mother told a social worker she had used methamphetamine two
or three weeks earlier.
2
The same day, the mother admitted she used marijuana,
but she made this admission only after being confronted with the
test results. The mother said she had gotten the drugs from a
friend, but claimed not to know the friend’s name or contact
information. The mother alternatively said she had tried
methamphetamine because she was curious and because the
friend had pressured her.
When a social worker visited the mother a few days after
the test, the mother mumbled. Her tone was low and fast. This
was on November 26, 2019. The evidence conflicted about
whether the social worker thought the mother was under the
influence during this visit. A December 31, 2019 Detention
Report states the mother appeared groomed and coherent but
that she did appear to be under the influence of drugs or alcohol
during the social worker’s visit. A declaration attached to the
Application and Declaration filed on January 10, 2020, however,
states the mother appeared groomed, coherent, and did not
appear to be under the influence of drugs or alcohol during this
visit.
The mother denied a history of drug or alcohol use, but her
record shows an arrest for possession of a controlled substance in
2012. The family’s pastor, who is a relative of J.B.’s father,
believed the mother might have had a history with drugs and/or
alcohol a few years before. The mother later admitted she uses
marijuana once a month, claiming she uses at night away from
the children. She denied using marijuana with the father.
The children did not report seeing the mother using drugs
or alcohol or acting “weird” or “different.” But J.B. said the
mother “mostly gets sleepy by 5pm so she goes to sleep and wakes
up the next day.” J.N. said the mother sometimes sleeps for a
3
long time so the children have to wake her up when it is time for
school. The father claimed ignorance of the mother’s drug use,
though they were living together at the time of her 2012 arrest
and he tested positive for methamphetamine within eight days of
the mother’s positive test for the same drug. The mother said the
father was aware of her marijuana use.
The mother has not enrolled in a substance abuse program
despite agreeing to do so. The mother missed two tests scheduled
by the Department. She tested negative twice.
B
We turn to the father’s situation.
Eight days after the mother’s positive test, the father tested
positive for amphetamine and methamphetamine. The father
denied any recent drug use. He said the test was wrong and he
was being set up. The father eventually admitted past
methamphetamine use, but resisted providing details. At various
points the father said he had not used methamphetamine in two
to three months and that he had not used it in years. He refused
to say how often he had used it. He began using
methamphetamine at age 18 and would use every weekend, but
stopped years ago. Later the father admitted he began using
marijuana at age 15 and used it every day until he moved in with
the mother at age 20. He uses marijuana occasionally now and
said he used with the mother once. The father began drinking at
age 20 and would drink every weekend, about 12 beers per
sitting, until two to three years ago. He began using cocaine at
age 18, increasing to weekly use until “a while ago.”
The father has a criminal history. He has been arrested
many times, including for “disorderly conduct: intox drug/alcoh”
in October 2009 and for possession of a controlled substance in
4
October 2012. His criminal history shows convictions for driving
under the influence and for driving with a suspended license. His
record also includes many failures to appear in court, with
resulting warrants. His most recent arrest, in June 2019, was for
possession of a controlled substance.
J.B. said he had seen the father drink in their previous
house. J.B. said when the father drinks the mother “leaves him
alone until he is done being drunk and then she tells him to stop
drinking because then he might go drive and crash.” J.N. also
reported having seen the father drink. J.N. said, when the father
drinks, the father gets dizzy, sometimes acts grumpy, and sleeps
for a long time. J.N. also stated he is sometimes home alone with
the father when the father drinks. All three children reported
the father works nights and is in his room or sleeping most of the
day. The family’s pastor believed the father had problems with
drugs and alcohol about five years ago. Other family members
confirmed the father used to drink and the mother and the father
would argue about his drinking. The mother denied the father
had used drugs “recently,” but said he may have used a few years
ago when he would go to Bakersfield to visit family for two days
at a time. The mother said the father does not drink in the
house. She said she was surprised by his positive test because
she “never knew that he was using drugs.” However, a number of
the father’s arrests relating to controlled substances and alcohol
were while he was living with the mother.
After his first positive test, the father missed two scheduled
tests, possibly due to paperwork mistakes that were not his fault.
The father tested negative once.
5
C
The maternal grandfather lives with the parents and the
children. He works during the day and comes home at night. He
said he had not seen the parents under the influence and did not
know about drug or alcohol use by either parent.
D
The Department’s investigation found the two sons had
poor school attendance. J.B. was absent 13 days and tardy 34
days; J.N. was absent 20 days and tardy 20 days. School officials
had concerns about both boys’ hygiene. J.N.’s school also had
concerns with J.N.’s behavior.
J.B. said the children needed to behave so the parents
would not hit them. J.B. denied the parents hit him. However,
he later said the parents sometimes hit the children with a belt
or hand. J.B. said if they are hit hard, they can still use their
devices, but if they are not hit hard, they are not allowed to use
their devices. J.N. said the mother had used the belt and a
sandal to discipline him. Later J.N. said the parents used a belt
or a hand. He said it hurts and he is a little scared when the
parents hit him. The parents claimed they do not use physical
discipline. A social worker reported “Per mother, if she is to hit
the children they would listen to her.”
E
The family has a history of involvement with the
Department.
In February 2012, the Department substantiated
allegations of general neglect of K.B. and J.B. by the mother.
Upon investigation, the Department confirmed the family’s gas
and electricity had been disconnected for about a month because
of inability to pay. The house also was unclean, with stains on
6
the floor and sofas, dirty dishes, and messy and cluttered rooms.
The Department gave the family referrals for support and
assistance.
In April 2015, the Department investigated allegations that
the children were always outside unsupervised and appeared
unkempt and perhaps ill. The Department substantiated
allegations the house was in disarray and extremely dirty,
causing a safety hazard. The children appeared clean and
healthy. A follow-up visit revealed a broken window that
required a further safety plan. The referral was closed as
“situation stabilized.”
In August 2019, the Department received a referral
relating to potential physical abuse of J.N. by an aunt and uncle.
The referral was closed because the mother was protective and
the people involved were no longer living with the family.
The referral at issue in this case stems from the parents’
positive drug tests in November 2019.
F
In December 2019, the parents and the Department agreed
on a safety plan. Under the plan, no one under the influence was
to care for the children; the family would be available to the
Department; the parents would participate in a drug and alcohol
program; the parents would submit to tests for drugs; and the
children would live with relatives for the next six days. As noted
above, the parents missed some of the scheduled tests but argued
this was the fault of poor paperwork by others. The parents did
not enroll in substance abuse programming as they had agreed to
do.
7
G
On January 10, 2020, the court granted a temporary
removal order for the children. K.B. was placed with a maternal
aunt, and J.B. and J.N. were placed together in a foster home.
On January 16, 2020, the Department filed a section 300
petition on behalf of K.B., J.B., and J.N. The petition alleged the
mother has a history of illicit drug use and is a current user of
amphetamine, methamphetamine, and marijuana, which renders
the mother unable to provide regular care and supervision of the
children; the mother tested positive for methamphetamine and
marijuana on November 19, 2019; the mother had been under the
influence of marijuana while caring for the children; and the
mother’s illicit drug use endangered the children’s physical
health and safety. The petition alleged the father had a five-year
history of substance use and is a current abuser of
methamphetamine, amphetamine, and marijuana, which renders
the father unable to provide regular care and supervision of J.N.;
the father had tested positive for methamphetamine and
amphetamine on November 27, 2019; and the father’s substance
abuse endangers J.N.’s physical health and safety.
On January 17, 2020, the court held a detention hearing
and ordered the children detained.
On February 27, 2020, the juvenile court held a jurisdiction
and disposition hearing. The court sustained the allegations as
to the mother and the father and declared the children
dependents of the court. The court then addressed disposition
and found there was substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the
children and no reasonable means to protect the children without
removing them from the parents’ custody. The court found that
8
the parents were in denial about substance abuse and had not
been truthful with the Department. The court found that the
substance abuse affected the children because of the hygiene and
school attendance issues. The court ordered reunification
services. It also ordered drug testing for the parents and
required them to attend a parenting class and individual
counseling. The court granted monitored visits. Both parents
appealed.
II
Under section 300, subdivision (b)(1), the court may
exercise jurisdiction over a child who 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 the parent adequately to
supervise or protect the child or to provide regular care for the
child due to the parent’s substance abuse.
“[W]hen a statute requires a fact to be found by clear and
convincing evidence, and when there is a substantial evidence
challenge, the reviewing court must determine whether the
record contains substantial evidence from which a reasonable
trier of fact could find the existence of that fact to be highly
probable.” (In re V.L. (2020) 54 Cal.App.5th 147, 149 (V.L.); id. at
pp. 153–155.) We apply that standard here.
III
Sufficient evidence supports the juvenile court’s decision
under subdivision (b) of section 300. The court correctly ruled
these children were within its jurisdiction.
A
The trial court properly found the mother’s conduct put her
children at substantial risk of serious physical harm. The mother
routinely disappeared from her children’s lives at about 5:00 p.m.
9
until they woke her the next morning for school. It was
reasonable for the juvenile court to infer the mother’s drug use
had something to do with this conduct. The resulting failure to
supervise the children put them at serious risk. Without
supervision, nothing protects children from a world of serious and
sudden danger.
1
The mother argues the record does not support the finding
she abuses methamphetamine and marijuana. The mother relies
on case law that applied clinical definitions of substance abuse,
including In re Drake M. (2012) 211 Cal.App.4th 754 (Drake M.).
She argues she neither has been clinically diagnosed with a
substance abuse disorder nor does she fit the clinical definitions
from the fourth or fifth edition of the Diagnostic and Statistical
Manual of Mental Disorders.
We join our colleagues in the Second Appellate District,
Division Seven in rejecting this approach from the Drake M.
opinion. The Drake M. formulation “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
categories can be found to be a current substance abuser.” (In re
Christopher R. (2014) 225 Cal.App.4th 1210, 1218 (Christopher
R.).)
This is not the first time we have parted company with this
aspect of the Drake M. decision. (See In re Rebecca C. (2014) 228
Cal.App.4th 720, 725–726 (Rebecca C.).)
The mother argues the only evidence of her substance use
is (1) one positive test, (2) statements by the family’s pastor that
10
she might have had a history with drugs or alcohol a few years
ago, and (3) a 2012 arrest for possession of a controlled substance.
She also emphasizes statements from the children and other
relatives that they have not seen her under the influence.
Ample evidence shows the mother currently abuses drugs.
The juvenile court was entitled to conclude the mother had been
transparently dissembling about her drug use. A reasonable
inference was the mother was trying to hide her ongoing
addiction. The trial court was entitled to draw this reasonable
inference.
We summarize evidence about the mother’s dissimulation.
Despite the positive test, the mother initially denied all drug use.
She then admitted using methamphetamine, but she did not tell
the truth about using marijuana until pressed. She changed her
story about her use of methamphetamine, claiming it had been
three days—and then she revised this to a few weeks—before the
drug test. She said she had gotten the methamphetamine from a
“friend,” but said she did not know her friend’s name. The
mother claimed the father did not know about her drug use and
she was not aware of drug use by the father despite the fact both
tested positive for methamphetamine within days of each other.
The mother delayed admitting her current and ongoing use of
marijuana. She and the father gave conflicting statements about
whether the father was aware of her marijuana use and whether
they had ever used marijuana together. She denied previous
drug use, though her record shows she was arrested in 2012 for
possession of a controlled substance. The children reported that
the mother gets sleepy and goes to sleep around 5:00 p.m. every
day and sometimes has to be woken up the next morning to take
the kids to school. Although there is evidence that the mother’s
11
failure to test was not her fault, she has only managed to test
twice since her positive test. The mother failed to enroll in the
substance abuse programming she agreed to in the safety plan.
The record supports the trial court’s finding.
2
The mother argues there is not enough evidence to support
a finding that the children were in substantial danger of serious
physical harm. The mother contends courts find substantial
physical danger only in two instances: (1) where there is an
identified and specific hazard in the child’s environment,
typically an adult with a proven record of abusiveness; and (2)
where the children are of tender age. According to the mother,
this case fits neither scenario. The mother argues she is not an
adult with a history of abusive behavior. Although there was
some conflicting evidence about whether the parents used
physical discipline with the children, the Department does not
seem to argue the mother is physically abusive.
Contrary to the mother’s argument, sufficient evidence
shows she created a serious risk of physical harm to her children.
She left them unsupervised most of the time they were home.
Children are immature, inquisitive, clever about escaping, and
inexperienced with life’s hazards. With impulsive urges and
without much judgment about what could go wrong, children
need supervision. A speeding car, a fire, a fall, a predator:
disasters can strike swiftly and without warning.
The juvenile court fairly could infer the mother left her
children largely unsupervised every evening. The mother goes to
bed or becomes unavailable each evening around 5:00 p.m. The
father similarly is asleep or in his room for most of the time he is
at home. The only other adult in the household, the maternal
12
grandfather, does not return from work until night time. The
children were under the mother’s supervision at the time
someone at the hospital reported her positive test and that she
seemed “out of it.” And although the mother claims the father
cares for the children when she uses marijuana, the children said
he is always sleeping or in his room.
The court need not wait for disaster to strike before
asserting jurisdiction. (In re I.J. (2013) 56 Cal.4th 766, 773.)
This is why the statute uses the word “risk.”
These facts distinguish In re Destiny S. (2012) 210
Cal.App.4th 999, 1004 and Rebecca C., supra, 228 Cal.App.4th at
pp. 727–728. In neither case was there evidence the parents’
drug abuse affected care of the children.
The mother also argues the children are not of tender age.
When a child is of tender age, a parent’s substance abuse can be
prima facie evidence of a risk of serious physical harm or illness.
(Christopher R., supra, 225 Cal.App.4th at p. 1219.) Direct
evidence of lack of supervision, which we have here, means this
case does not turn on prima facie evidence.
By the same token, the mother cites In re Janet T. (2001)
93 Cal.App.4th 377 to argue failure to attend school does not
create a substantial risk of serious physical injury or illness. The
direct evidence of the mother’s lack of supervision, however,
makes other evidence superfluous. The problems with school
attendance and the sons’ poor hygiene are consistent with lack of
supervision, but the mother’s actual failure to supervise is the
direct and decisive evidence of substantial risk of harm in this
case.
13
B
Sufficient evidence also supports the finding that the
father’s substance abuse put J.N. at a substantial risk of serious
physical harm.
1
The father argues there is little evidence in the record that
he is a substance abuser. He repeats some of the mother’s
arguments, which we have rejected and do not reiterate.
The father argues he is employed, he contributes to the
children’s financial needs, the children are attached to him, and
they are meeting developmental milestones. The Department
does acknowledge these strengths, but they do not negate the
evidence of father’s substance abuse and his failure to supervise
the children.
The father relies on the inapposite case of In re L.C. (2019)
38 Cal.App.5th 646. L.C. involved a legal guardian who had used
methamphetamine six or seven times in about a year. (Id. at p.
650.) Although the legal guardian initially lied to the
Department about his drug use, once he realized he could lose
custody of his daughter, he came clean and reformed. (Ibid.) He
immediately ceased drug use, obtained drug tests, and enrolled in
a substance abuse program. (Id. at pp. 650–651.) The
Department found that, even when the legal guardian used
methamphetamine, he ensured his daughter was properly cared
for and supervised by another adult. The guardian never cared
for his daughter himself while he was under the influence. (Id. at
p. 653.) This is a far cry from the father’s situation. The father
continues to deny any substance abuse, claims he was set up, and
has taken no steps to address his drug use. He has not been
14
candid with the Department about his past and current use. L.C.
does not help the father.
The father’s criminal history substantiates the court’s
finding. The family’s pastor corroborated the father’s drug and
alcohol problems about five years ago. Although the father
eventually confessed to a substantial history with
methamphetamine, cocaine, and marijuana, he continued to deny
using methamphetamine before his positive test and refused to
provide details about his current abuse. He and the mother
denied he drinks in the house, but the children said otherwise.
The children also described conversations between the mother
and the father about his drinking. Another family member
detailed arguments between the parents on the subject. The
children said the father spends much of his time in his room.
As with the mother, sufficient evidence supports the
finding the father is a substance abuser.
2
The father argues that, even if he is a substance abuser,
there is not enough evidence to show his abuse caused a
substantial risk of serious physical harm to the children. As did
the mother, the father points to statements by the children and
family members that they had not seen the father under the
influence; but this does not nullify other evidence in the record.
The father incorrectly argues finding harm here “would
essentially mean that physical harm to a child is presumed from
a parent’s substance abuse under the dependency statutes, and
that it is a parent’s burden to prove a negative, i.e., the absence of
harm.” We do not presume harm. Rather, we find there was
enough evidence to permit the juvenile court to infer the risk of
physical harm from the father’s failure to supervise the children.
15
The father argues past events, like his past drug use, are
probative only where the same kind of harm is likely to continue
in the future. A court is entitled to infer past conduct will
continue where the parent denies there is a problem. (In re A.F.
(2016) 3 Cal.App.5th 283, 293 [courts properly consider denial as
a relevant factor in determining whether persons are likely to
modify their behavior in the future without court supervision].)
The father seems to be fully in denial about the key features of
this situation.
The father rightly notes a criminal record alone does not
bear on parenting abilities. But a criminal record can corroborate
other evidence of substance abuse, as it does here.
C
Sufficient evidence supports the juvenile court’s
dispositional order removing the children. As the parents note,
before the juvenile court may order a child physically removed
from his or her parent’s custody, it must find, by clear and
convincing evidence, the child would be at substantial risk of
harm if returned home and there are no reasonable means by
which the child can be protected without removal. (§ 361, subd.
(c)(1).)
Again we must determine whether the record contains
substantial evidence from which a reasonable trier of fact could
find the existence of that fact to be highly probable. (V.L., supra,
54 Cal.App.5th at p. 149.)
The parent need not be dangerous, and the minor need not
have suffered actual harm before removal is appropriate. (In re
T.V. (2013) 217 Cal.App.4th 126, 135–136.) The purpose of the
statute is to avert harm. (Ibid.)
16
The parents repeat their arguments when attacking the
dispositional order. Each argues there was not substantial
evidence to support the court’s findings that they are substance
abusers or that the children were at risk of harm, so there was no
basis to remove the children. As we have discussed, sufficient
evidence supports both findings, and as to each parent. The same
evidence supports the juvenile court’s removal of the children.
The mother argues the maternal grandfather’s presence in
the home and the mother’s regular contact with other relatives
showed the children were safe with her. But the maternal
grandfather works all day and is only at home at night. The
maternal grandfather and the maternal relatives all claimed they
were unaware of drug use by the mother and the father. From
this the court could infer their help would not supply adequate
supervision for the children.
DISPOSITION
We affirm.
WILEY, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
17