In re J.F. CA2/8

Filed 9/16/20 In re J.F. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re J.F., a Person Coming B305123
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 20CCJP00285A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.J.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, D. Brett Bianco, Judge. Affirmed.
Valerie N. Lankford, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and David Michael Miller, Deputy County
Counsel, for Plaintiff and Respondent.
**********
Mother E.J. appeals the juvenile court’s jurisdictional and
dispositional orders for her infant son, J.F., who was less than
one month old at the time of his detention. Mother contends
substantial evidence does not support the court’s jurisdictional
findings under Welfare and Institutions Code section 300,
subdivision (b),1 arguing there was no substantial evidence she
abused substances, or that her drug use placed J.F. at risk of
harm. She also contends the order removing J.F. from her care
was not supported by substantial evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
J.F. first came to the attention of the Los Angeles County
Department of Children and Family Services (Department) in
December 2019, after he and mother tested positive for
marijuana at his birth. J.F. had to be hospitalized in the NICU
for low birth weight and because he was not eating well. Mother
made inconsistent statements about the prenatal care she
received, and tried to conceal her history with the Department for
an older child (post). Mother claimed she stopped using
marijuana when she became pregnant with J.F., and claimed her
positive test resulted from exposure to secondhand smoke.
Hospital staff noted that mother was behaving strangely and did
not seem to understand simple concepts. Mother’s doctor was
concerned about her ability to care for J.F.
While that referral was being investigated, the Department
received a new referral (the one leading to J.F.’s detention) on
January 10, 2020. Mother had been arrested on January 3, 2020
and was in jail. J.F. was in the care of his alleged father,
1 All further statutory references are to the Welfare and
Institutions Code.
2
Jeremy F. Father had called 911 after J.F. started foaming at
the mouth and turned blue. Emergency responders noted the
room where J.F. was found smelled of marijuana. Father also
appeared to be under the influence of marijuana or other drugs.
J.F. was admitted to the hospital for observation, and it was
suspected he had been overfed, vomited, and choked.
The Department obtained a removal order, and J.F. was
released from the hospital to the Department on January 14,
2020.
We previously affirmed jurisdictional and dispositional
orders for mother’s older child, K.D., who came to the attention of
the Department when he was several weeks old, after mother
(who was then in foster care) went AWOL from her group home,
concealed K.D.’s whereabouts from the Department, and engaged
in risky behaviors such as drug use, prostitution, and domestic
violence. The Department was unable to locate K.D. until he was
10 months old. The juvenile court sustained allegations that
mother had a history of runaway behavior, had run away with
the infant K.D. and engaged in unsafe behaviors, was found in a
motel frequented by prostitutes, and her male companion
threatened to harm her because she failed to get money from
pimping, all of which placed K.D. at risk of serious harm. (In re
K.D. (July 31, 2018, B287757) [nonpub. opn.].)
Mother’s case plan for K.D. required her to participate in a
substance abuse program, drug testing, parenting and anger
management classes, and individual counseling. Between
May 2017 and April 2018, she missed all 21 scheduled drug tests.
Mother failed to reunify with K.D., and jurisdiction was
terminated in February 2019 with K.D. placed in a legal
guardianship.
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In April 2018, while mother’s appeal concerning K.D. was
pending, she gave birth to a daughter, S.J., in Nevada. S.J. was
detained from mother at birth due to prenatal drug exposure.
She was placed in foster care, and mother was not compliant with
her case plan. Nevada social services considered placing S.J.
with relatives in California. The Department received a referral
concerning S.J. in February 2019, based on a domestic violence
incident between mother and father. The referral was closed
because S.J. was safe in foster care.
Mother also has an extensive criminal history, with arrests
for petty theft, loitering with intent to commit prostitution,
disorderly conduct, robbery, obstructing a peace officer, and
grand theft, among other arrests.
The Department filed a petition with allegations under
section 300, subdivisions (a) and (b) against mother and father,
based on the choking incident as to father, and mother’s
substance abuse history and positive drug test at J.F.’s birth. On
January 17, 2020, the juvenile court detained J.F. from mother
and father.
In its report for the February 27, 2020 jurisdiction and
disposition hearing, the Department stated it had been unable to
contact mother. She could not be reached at the number she
provided to the court and was not living at the address she had
provided. Her visitation was sporadic. She showed up for one of
her visits with glassy eyes, smelling of marijuana. When the
social worker demanded that she drug test, mother said she
would have to test later because she had things to do.
The Department investigator was able to interview mother
on February 14, 2020, when she came to Department offices for a
monitored visit with J.F. Mother was angry and tearful during
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the interview, saying she had done nothing wrong and had
nothing to do with the choking incident because she was
incarcerated when it happened. She still maintained that her
positive drug test was from being exposed to secondhand
marijuana smoke during pregnancy. Mother was a no-show for a
February 13 on-demand drug test.
The juvenile court sustained allegations under section 300,
subdivision (b) as to mother, based on mother’s and J.F.’s positive
drug tests at birth, and mother’s history of substance abuse and
current abuse of marijuana. Because a DNA test confirmed that
Jeremy was not J.F.’s father, he was dismissed from the case, and
the allegations against him were stricken.
The court removed J.F. from mother, and ordered her to
participate in reunification services. This timely appeal followed.
DISCUSSION
1. Jurisdiction
Mother contends the findings under section 300,
subdivision (b) are unsupported, arguing there was no evidence
she was a substance abuser or that she placed J.F. at risk of
harm, as he was not in her custody when the incident leading to
his detention occurred, and J.F. had been released to her care
even though they both tested positive at his birth.
Section 300, subdivision (b)(1), authorizes a juvenile court
to exercise dependency jurisdiction over a child if 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 . . . to adequately supervise or
protect the child, or . . . by the inability of the parent . . . to
provide regular care for the child due to the parent’s . . .
substance abuse.” (Ibid.) “The provision of a home environment
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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.)
There was substantial evidence mother abused substances,
and that J.F. was at risk of harm in her care. (See In re Cole C.
(2009) 174 Cal.App.4th 900, 916 [discussing substantial evidence
standard of review].) Her two younger children, J.F. and S.J.,
both tested positive for drugs at birth. Mother failed to drug test
in her case for K.D. (and in fact appears to have been using drugs
during the pendency of that case, given the positive drug test at
S.J.’s birth). She failed to participate in her court-ordered
programs and services in her cases with K.D. and S.J. J.F. was
born with a low birth weight, and it is unclear if mother had
received prenatal care. She consistently denied using drugs and
provided implausible explanations for the positive drug tests.
She has a history of evading the Department, concealing her
child K.D. and placing him in risky situations, and never
reunified with her children in her other cases. The problems that
keep bringing mother’s children under the jurisdiction of the
court still exist, unabated. The juvenile court “need not wait
until a child is seriously abused or injured to assume jurisdiction
and take the steps necessary to protect the child.” (In re R.V.
(2012) 208 Cal.App.4th 837, 843.) Given J.F.’s young age,
mother’s drug abuse created a substantial risk to his safety. (In
re Drake M. (2012) 211 Cal.App.4th 754, 767.)
This case is not like mother’s cited cases, In re L.C. (2019)
38 Cal.App.5th 646, In re Destiny S. (2012) 210 Cal.App.4th 999,
or In re Drake M., supra, where the evidence did not establish the
child’s parent or guardian abused substances. The children in
these cases were older than newborn J.F., and there was scant
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evidence that the parents or guardians in those cases were
unable to keep their children safe. (In re L.C., at pp. 652-653;
In re Destiny S., at p. 1003; In re Drake M., supra,
211 Cal.App.4th at p. 764.)
2. Disposition
Mother contends the Department did not meet its burden of
proof for removal of J.F. by clear and convincing evidence. We
are not persuaded.
A child may not be removed from a parent or guardian
unless there is clear and convincing evidence of “substantial
danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned
home, and there are no reasonable means by which the minor’s
physical health can be protected without removing the minor
from the minor’s parent’s [or] guardian’s . . . physical custody.”
(§ 361, subd. (c)(1).) A juvenile court’s removal order is reviewed
under the substantial evidence standard of review. (In re
Heather A. (1996) 52 Cal.App.4th 183, 193; see also
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012.)
The evidence discussed ante amply supports the juvenile
court’s conclusion that removal was necessary, and that there
were no other reasonable means of protecting J.F.
DISPOSITION
The orders are affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J. STRATTON, J.
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