In re M.M. CA2/5

Filed 3/9/21 In re M.M. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re M.M., A Person Coming B306682
Under Juvenile Court Law.
_________________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 17LJJP00156B)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
DEBRA M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Nichelle Blackwell, Juvenile Court Referee.
Affirmed.
Erin Riley Khorram, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Navid Nakhjavani, Principal Deputy
County Counsel, for Plaintiff and Respondent.
________________________
Mother D.M. appeals from the dispositional order following
the adjudication of her then two-year-old son, M.M. (child) as a
dependent child. Specifically, she contends the court erred in
removing her son from her custody because reasonable means
existed to protect him without removing him from her home. She
further contends the court erred in finding the Department of
Children and Family Services (the Department) had made
reasonable efforts to avoid removal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prior Services
Child was born in September 2017, when mother was 19
years old. Mother was herself a dependent, and was still
receiving services. Those services would continue until she
turned 21 in January 2019.
In October 2017, the Department received a referral
alleging physical abuse and general neglect. The abuse
allegation was unfounded, but the general neglect was
substantiated.1 A non-detained dependency case was opened. In
February 2018, the petition was dismissed without prejudice due
to mother agreeing to a voluntary family maintenance contract
with the Department, with the goal of keeping child in her home.
(Welf. & Inst. Code, § 301.)2 Mother participated in counseling
and random drug testing. She tested negative, although she
1 The allegation involved mother leaving her placement with
the child for a number of days. Upon her return, mother’s
behavior “began to escalate” and, while holding her newborn, she
threatened to punch the caregiver and threatened other adults in
the home.
2 All further undesignated statutory references are to the
Welfare & Institutions Code.
2
missed some tests. The family maintenance contract ended on
July 25, 2018.
2. The April 30, 2020 Incident
The current case brought child to the attention of the
Department when mother and child found themselves in the
middle of a drug deal.
On April 30, 2020, police planned a controlled buy of
cocaine base in an area known for high narcotics activity. They
used an informant as the purchaser. The purchaser met with a
man (referred to in the police report as Suspect 2) at an
intersection and told him he wanted to buy rock cocaine. Suspect
2 entered the informant’s vehicle and directed him to another
intersection some distance away. There, the informant gave
Suspect 2 predesignated buy money. Suspect 2 exited the car and
placed a call. Thereafter, another vehicle, driven by Suspect 1,
pulled up. Suspect 1 exited the car and met Suspect 2. Suspect 2
handed Suspect 1 the cash. As Suspect 1 was handing Suspect 2
the cocaine base, police converged. Both suspects were arrested
without incident.
Police found mother and child in the back seat of Suspect
1’s car. A dozen liquor bottles, with security devices attached
(consistent with the bottles being stolen) were next to mother.
Child was not in a car seat.
Mother was “irate and chaotic when law enforcement asked
her to step out of the vehicle. She was making growling sounds
and screaming noises, and was not responsive to law
enforcement.” Mother resisted and the officers “utilized use of
force strategy” against her. A social worker from the
Department’s Multi-Agency Response Team, CSW Diego Lopez,
was called to the scene. Prior to interviewing mother, Lopez
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“observed the mother to need about five minutes to gather herself
as she was growling and screaming loudly.” Mother eventually
calmed.
When asked to explain her presence at the scene, she said
she had met Suspect 1 at the grocery store a couple days ago, and
had asked him for a ride to the store. She denied any awareness
of criminal activity and said she did not even know his name.
When asked about the lack of car seat, she said she did not think
much of it because “ ‘we only came down the street.’ ” CSW Lopez
reminded her of the importance of a car seat and mother agreed,
expressing remorse and promising to comply with the law in the
future.
When asked about drug use, mother reported that she used
marijuana weekly. CSW Lopez asked if she would drug test to
rule out the use of any illicit substances, and mother agreed; she
also stated that she may test positive for methamphetamine, as
she had used last weekend when out “with some friends she met
on the streets.” She denied using drugs in the presence of her
child, explaining that when she had used methamphetamine,
child was cared for by a friend at mother’s transitional home.3
Mother has no family she can turn to for support. Child’s father
has been identified by first name only. He is not a presence in
child’s life nor a party to this appeal.
Law enforcement took mother and child home. CSW Lopez
conducted a home assessment; there were no concerns regarding
safety in the home. Lopez also believed the child was healthy
and safe.
3 Mother lived in a home for low income mothers and their
children. She reported that times had been difficult and she did
not work. Mother’s criminal history includes prostitution.
4
Mother drug tested the next day, May 1, 2020. She was
positive for methamphetamine, amphetamine, and marijuana.
3. Detention
On May 6, 2020, CSW Lopez filed an application for an
authorization for removal. An order was obtained and child was
detained the next day.
4. Petition
On May 11, 2020, the Department filed a petition to declare
child a dependent under section 300, subdivision (b).4 Two
paragraphs were alleged to support dependency. Ultimately, the
first would be sustained and the second dismissed.5
The sustained first paragraph alleged mother “has a
history of substance abuse and is a current abuser of
methamphetamines, amphetamines, and marijuana, which
renders the mother incapable of providing regular care and
supervision of the child. On 05/01/2020, the mother had a
4 This provides a child may be adjudicated dependent if
“[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 inability of the parent or guardian to provide regular care
for the child due to the parent’s or guardian’s . . . substance
abuse.”
5 The dismissed paragraph was solely directed to the
April 30, 2020 incident, not the broader question of mother’s
substance abuse and her inability to care for child. It alleged
that mother put child in a “detrimental and endangering
situation in that cocaine base and 12 bottles of alcohol were found
in a vehicle with the child” and also that he was not secured in a
car seat. The court did not find this allegation untrue; it simply
found insufficient evidence that there was a current risk to child
sufficient for jurisdiction based on this allegation.
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positive toxicology screen for amphetamines, methamphetamines,
and marijuana. The child is of such young age requiring constant
care and supervision and the mother’s substance abuse interferes
with providing regular care and supervision of the child. The
mother’s substance abuse endangers the child’s physical health
and safety and places the child at risk of serious physical harm,
damage and danger.”
At the May 14, 2020 detention hearing, the court directed
the Department to provide mother with all appropriate low and
no cost referrals for services. The court specifically stated, “Those
referrals to include a testing referral with result in the next
report.” CSW Lopez had indicated in his detention report that
referrals for parenting, individual counseling, substance abuse,
and random drug testing had already been provided to mother.
The matter was set for an adjudication/disposition hearing
5. Progress Before the Adjudication/Disposition Hearing
Mother had a number of drug tests between the May 14,
2020 detention hearing and the July 8, 2020 adjudication
hearing. Mother did not test positive for methamphetamine or
amphetamine after her first, May 1, 2020, on-demand test.
However, she had two missed tests. In addition, her drug tests
indicated that she continued using marijuana.6
Her test results were:
Date Marijuana metabolites
6 On appeal, mother asserts that her “test results showed a
general trend toward reduced amounts of marijuana present in
her system.” On the contrary, the numbers twice increased from
their last reported value, indicating that mother used marijuana
at least twice during this period – once before May 22 and once
before June 18.
6
May 1, 2020 899 NG/ml
May 22, 2020 >4000 NG/ml
May 28, 2020 No show
June 4, 2020 76 NG/ml
June 9, 2020 No show
June 18, 2020 626 NG/ml
June 25, 2020 174 NG/ml
(move this to left) Mother also began individual counseling;
she had three sessions and appeared motivated and cooperative.
She had also enrolled in parenting. Mother had not yet enrolled
in substance abuse treatment; she would testify that she was
placed on a waiting list.
6. The Department’s Report for the
Adjudication/Disposition Hearing
The Department’s report for the Adjudication/Disposition
hearing contained further statements from mother regarding her
drug use and how it impacted child. Mother admitted that,
before child was born, she was using methamphetamine “ ‘on and
off.’ ” She denied being a current user of methamphetamine, and
claimed that she had simply used once when “ ‘hanging out’ ”
with friends. She again said she left child with a friend at home
when she used, but was “not able to provide the name or contact
information of the friend that provided care and supervision” for
the child.7
Mother admitted that she used to smoke marijuana “ ‘all
the time,’ ” but claimed to have recently stopped using because
7 Mother did identify a friend as her support system, but did
not identify her as the person who cared for child when she was
using methamphetamine.
7
she wanted to focus on education, employment, and reunifying
with her child. “Mother stated that she feels that she is receiving
resources from the Department and does not need to smoke
Marijuana at this time.” Mother wanted to begin training to
become a security guard, so needed to stop using marijuana.
As to what brought her and child to be in the backseat of a
car during a drug deal, mother claimed that she had been
running out of milk for child and called her friend for a ride to the
store so she could buy more. She claimed she was unaware of the
alcohol in the vehicle. She also regretted not using a car seat and
requested Department assistance in obtaining one. She accepted
that she needs to make better decisions for her son’s safety.
7. The Adjudication/Disposition Hearing
The combined Adjudication/Disposition hearing was held
on July 8, 2020.
As to jurisdiction, mother’s counsel conceded the case was
about “a mother who needs help and is willing to get help and
acknowledges her use of drugs.” There were no witnesses on the
issue of jurisdiction, and the court found child dependent under
section 300, subdivision (b), based on mother’s drug abuse, as
alleged in the first paragraph of the petition. The court found
that “mother has a substance abuse problem” and stated, “I do
believe that the mother’s current use of methamphetamine and
getting into a car with individuals who had stolen merchandise
and possibly engaging in narcotics sales, individuals who she has
known for only two days, by her own statements, indicates
mother is making bad choices and bad decisions, possibly because
of her methamphetamine use.”
The court then turned to disposition, and heard evidence on
whether removing child from mother was necessary. Mother
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submitted a letter confirming that she had started individual
counseling and also testified herself. She called as a witness the
Department’s Dependency Investigator (DI) Sonia Sandoval.
DI Sandoval was called, in part, in order to support
mother’s argument that the Department had not provided mother
with the necessary referrals. Sandoval testified that she did not
provide mother with referrals because CSW Lopez already had.
Mother did not call Lopez to testify.
DI Sandoval also testified that the Department had
considered whether to recommend keeping child in mother’s
home supported by family preservation services. The
Department declined to do so because of the following
circumstances: (1) mother’s ongoing marijuana use; (2) the
Department’s inability to identify, and therefore assess, anyone
who allegedly cared for child while mother was under the
influence; (3) mother’s recent use of methamphetamine;
(4) mother’s missed drug tests; (5) mother’s previous participation
in a program with substance abuse treatment; (6) child’s tender
years; (7) mother’s lack of a support system; (8) mother’s lack of
current participation in a substance abuse program; and
(9) mother’s lack of stable housing.
Mother testified that she had been trying to get into a
substance abuse program but was initially placed on a waiting
list. She asserted that she was presently being assessed for a
program which she had found on her own.
The trial court reasonably found mother’s testimony
regarding drug testing implausible. Mother claimed that she had
never missed a test and called every day to make sure her letter
was not called. She asserted that on June 25 – less than two
weeks before the hearing – she had been changed from random
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testing to weekly testing. When asked when she last used
marijuana, she said it was “[a] month and a half ago, the day
they switched” the testing schedule.8
Mother’s counsel argued for placement of child in mother’s
home with services. Counsel argued that mother was willing to
do programs and had done everything she could to enroll, even
without the Department’s assistance. Counsel argued that there
was only one positive drug test for methamphetamine, and
mother had stopped using marijuana, as decreasing levels
confirmed. Mother’s counsel specifically requested the court find
that reasonable services to prevent removal had not been
provided.
The trial court concluded that removal was necessary.
Although the court did not accept all the reasons offered by the
Department, the court found that mother’s drug use created too
great a risk to child. The court recognized that, although
marijuana is legal, “if someone is using it and under the influence
of it, they need to not be caring for their child, especially a two-
year-old child.” The court stated that mother “stated some
random person at her transitional housing was caring for the
child, but she failed to give a name so I find that to be dishonest
and lacking in credibility to this court.”
The court also cited mother’s recent use of
methamphetamine. The court stated that it appeared that mother
was under the influence of methamphetamine when the arrest
was made. The court was particularly concerned that mother’s
8 After testimony closed and counsel was arguing, mother
attempted to volunteer that she had made a mistake and the date
of the change was actually “the 15th.” Even June 15 was not a
month and a half prior to the July 8 hearing.
10
methamphetamine use “impacted mother’s ability to make the
right judgment” such as whether to “get in a car with a two year
old without a car seat, with someone she had known for only two
days, noting that there were bottles of alcohol with a security tag
still on them right next to her in the car.” An additional basis for
the court’s ruling was mother’s missed and positive drug tests,
including those showing increases in her marijuana metabolites.
The court summed up its dispositional findings, “This is a
young child of tender years and it is important to see that the
mother has control over her addiction. [¶] This addiction will not
just go away. One has to exercise the proper tools, the proper
techniques, the proper relapse prevention skills to avoid relapse,
and that means not being in an environment with drug users,
drug abusers or drug dealers and maintain a sober life-style and
a sober environment.” The court found clear and convincing
evidence existed that returning child would pose a substantial
risk of detriment and no reasonable means then existed to protect
him other than removal.
The court also found the Department made reasonable
efforts to avoid removal.
Mother was granted monitored visitation and reunification
services. Mother filed a timely notice of appeal.
DISCUSSION
On appeal, mother does not contest the court’s finding of
jurisdiction, but challenges the court’s dispositional order to the
extent the dependency court did not return child to her custody.
Specifically, mother argues reasonable means existed to protect
child in her home, via family preservation services. In addition,
mother argues the Department did not make reasonable efforts to
prevent removal.
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1. Sufficient Evidence Supports Child’s Removal
“Before the court may order a child physically removed
from his or her parent, it must find, by clear and convincing
evidence, that the child would be at substantial risk of harm if
returned home and that there are no reasonable means by which
the child can be protected without removal. [Citations.]” (In re
Cole C. (2009) 174 Cal.App.4th 900, 917.) “The parent need not
be dangerous and the child need not have been actually harmed
for removal to be appropriate. The focus of the statute is on
averting harm to the child. [Citations.] In this regard, the court
may consider the parent’s past conduct as well as present
circumstances. [Citation.]” (Ibid.)
We review the court’s disposition finding for substantial
evidence. (In re Henry V. (2004) 119 Cal.App.4th 522, 529.)
Because the trial court’s finding must itself be made on clear and
convincing evidence, we must take that heightened standard into
account in our review. (In re V.L. (2020) 54 Cal.App.5th 147,
155.) Specifically “ ‘[W]hen reviewing a finding that a fact has
been proved by clear and convincing evidence, the question before
the appellate court is whether the record as a whole contains
substantial evidence from which a reasonable fact finder could
have found it highly probable that the fact was true. Consistent
with well-established principles governing review for sufficiency
of the evidence, in making this assessment the appellate court
must view the record in the light most favorable to the prevailing
party below and give due deference to how the trier of fact may
have evaluated the credibility of witnesses, resolved conflicts in
the evidence, and drawn reasonable inferences from the
evidence.’ ” (Ibid., quoting Conservatorship of O.B. (2020)
9 Cal.5th 989, 995-996.)
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Here, the trial court concluded mother’s unresolved
substance abuse rendered it unsafe for child to be returned
home.9 This was supported by substantial evidence. Mother
admitted using methamphetamine before child was born and
smoking marijuana weekly during his life. Her previous family
maintenance services included drug testing, confirming that
drugs played a role in the prior neglect allegations. That she
tested negative at the time, albeit with missed tests, showed that
mother was able to restrain her drug use to some degree. But
that she relapsed into regular marijuana use and at least one
incident of methamphetamine use evidenced that she was not
stable in sobriety.
Mother’s drug use presented a risk of harm to the child in
the absence of an identified safe caretaker who could supervise
the child when mother used, and was under the influence of,
drugs. She could not identify the person with whom she left child
when she used methamphetamine; and, more importantly, she
had the child in her sole supervision when she was still impaired
by methamphetamine, resulting in her admittedly bad choices
which placed the child at risk.
9 In her reply brief on appeal, mother suggests the evidence
only supports a finding that she “used,” drugs, not that she
“abused” them. This argument would go to the jurisdictional
finding, which mother did not contest in her opening brief.
Jurisdiction under section 300, subdivision (b) is based on
substance abuse, not substance use. (In re Drake M., (2012)
211 Cal.App.4th 754, 764.) In any event, the findings that we
affirm with regard to the risk to child presented by mother’s
methamphetamine and marijuana use likewise support the
court’s jurisdictional finding of substance abuse.
13
On appeal, Mother suggests that “by the time of the
jurisdiction and disposition hearing, the immediate risks the
court identified that resulted from mother’s poor decision-making
had been addressed.” She notes, in this regard, that she
(1) sought Department assistance in obtaining a car seat; (2) was
no longer associating with the drug-dealing suspects; (3) was
cooperating with the Department; and (4) had located a drug
program and put her name on the waitlist. Notably absent from
her list is any suggestion that she had stopped using drugs.
Indeed, she had not. Of her six drug tests following child’s initial
detention, two showed an increase in marijuana metabolites and
two were no shows.10 While mother claimed to have stopped
using marijuana a few weeks prior to the adjudication/disposition
hearing, this short sobriety is insufficient to demonstrate that the
risk had been abated.
Increased Department supervision could not protect child
in mother’s home at this point. Given mother’s history of drug
abuse, the court could not safely return child to mother’s custody
without a lengthier term of sobriety. There was simply no
evidence that mother would not again attempt to care for her
toddler while under the influence of drugs.
10 In her brief on appeal, mother states, “Mother
acknowledges she missed two opportunities to drug test, which
she had undertaken to do, voluntarily.” She then suggests this
should not “weigh heavily against her” as the tests were not then
court-ordered. Mother’s acknowledgement of the missed tests on
appeal is in direct contrast to her testimony at the hearing, when,
having been given an opportunity to explain why she missed two
tests, she simply denied having missed them. Mother’s appellate
concession is, in effect, an admission that she was not truthful in
her testimony at the disposition hearing.
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2. Substantial Evidence Supports the Court’s Finding
Reasonable Efforts Were Made to Prevent Removal
The juvenile court is required to make a determination
whether reasonable efforts were made to eliminate the need for
removal. (§ 361, subd. (e).) The trial court made a finding that
reasonable efforts had been made, but did not specify those
efforts beyond stating the Department has evidenced reasonable
efforts “by repeated efforts and services they’ve offered mother.”
“We review a reasonable services finding to determine if it
is supported by substantial evidence. [Citation.]” (In re A.G.
(2017) 12 Cal.App.5th 994, 1001.) Substantial evidence supports
the court’s finding. CSW Lopez provided mother with low or no
cost referrals to parenting, individual counseling, substance
abuse, and random drug testing. Indeed, prior to the
adjudication/disposition hearing, mother told DI Sandoval “that
she feels that she is receiving resources from the Department and
does not need to smoke Marijuana at this time.”
DISPOSITION
The disposition order is affirmed.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.
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