In re Yasmine D. CA2/3

Filed 4/14/23 In re Yasmine D. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re YASMINE D. et al., Persons B318410
Coming Under the Juvenile Court Law.
_____________________________________
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. 21CCJP03652A-
FAMILY SERVICES, B)
Plaintiff and Respondent,
v.
DARREN D. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Hernan D. Vera, Judge. Affirmed.
Elizabeth C. Alexander, under appointment by the Court of
Appeal, for Defendant and Appellant, Darren D.
Law Office of Linda J. Conrad and Linda J. Conrad, under
appointment by the Court of Appeal, for Defendant and
Appellant, G.I.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, Aileen Wong, Deputy County Counsel
for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Darren D. (father) and Rochelle T. (mother) are parents of
Yasmine D. The juvenile court sustained an allegation in a
dependency petition brought on behalf of Yasmine pursuant to
Welfare and Institutions Code1 section 300 that father failed to
protect Yasmine, then only several months old, from the risks
posed by mother’s substance abuse.
Father appeals, contending the juvenile court’s
jurisdictional order sustaining the allegation is not supported by
substantial evidence. Father asks that we reverse the
jurisdictional order and the dispositional order based on it.
Because we conclude that substantial evidence supports the
juvenile court’s jurisdictional order, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Earlier proceedings involving mother
We briefly describe earlier dependency proceedings
involving mother insofar as they relate to the instant appeal.
1 All subsequent undesignated statutory references are to
the Welfare and Institutions Code.
2
A. Proceedings involving J.K. and Cassandra
In January 2016, the juvenile court sustained a dependency
petition filed on behalf of two of mother’s children, J.K. and
Cassandra I. The court determined that mother had physically
abused J.K., had engaged in domestic violence with George I.,
Cassandra’s father, and had a history of marijuana abuse.
The court terminated jurisdiction over Cassandra in
February 2017 with an order granting George sole physical
custody of Cassandra. In July 2018, mother’s parental rights
over J.K. were terminated.
B. Proceedings involving Cassandra
In August 2021, the Los Angeles County Department of
Children and Family Services (DCFS) filed a dependency petition
on behalf of Cassandra alleging that George and mother engaged
in physical altercations in front of Cassandra, that mother
physically abused Cassandra, and that both George and mother
abused marijuana.
According to DCFS’s August 2021 detention report, George
reported that mother had hit and punched Cassandra, had hit
and bitten him, and had caused damage to his home. George
further reported that mother, who was seven months pregnant at
the time—with Yasmine, not George’s child—smoked marijuana.
DCFS’s detention report also described a July 2021
interview with mother. Relevant here, mother acknowledged
being seven months pregnant, that she used marijuana, and that
she had done so as recently as a month earlier, but said that how
often she used marijuana was her “personal business.” Mother
denied smoking marijuana in the presence of Cassandra. Mother
further informed DCFS that she was in a relationship with father
3
but declined to give the social worker father’s contact
information.
Mother tested positive for marijuana on July 17, 2021, the
day after her interview with DCFS.
DCFS’s October 2021 jurisdiction/disposition report
described further interviews with Cassandra and George.
Cassandra said that mother used drugs, but Cassandra did not
identify the type of drug. Cassandra had not seen mother use
drugs, but had overheard mother mention drugs to mother’s
friend. George also reported that mother smoked marijuana, and
that “[s]he like[d] smoking . . . .” He said that “on different
occasions, when mother has been in his home, he ha[d] asked
mother to smoke outside the house,” but that she smoked inside
anyway.2
According to the same report, mother had an additional
positive marijuana test on July 28, 2021.
II. Proceedings involving Yasmine
Meanwhile, on September 28, 2021, DCFS received a
referral for Yasmine, then less than one month old, alleging she
was the victim of general neglect based on the same allegations
at issue in the pending dependency petition involving Cassandra.
A. Detention report
According to a DCFS detention report dated November 4,
2021, mother had been uncooperative with DCFS’s efforts to meet
Yasmine, born in September 2021. In late September 2021, the
social worker assigned to Cassandra said that mother would not
2 Based on the context of these reported statements, it
appears that they refer to smoking marijuana.
4
give DCFS mother’s home address and would not allow DCFS to
meet Yasmine. During a monitored visit with Cassandra, mother
denied that the newborn she was carrying was Yasmine; she said
it was her friend’s baby.
At a subsequent monitored visit with Cassandra on October
6, 2021, DCFS informed mother about the open referral for
Yasmine. Mother said that DCFS did not need to know anything
about Yasmine. Mother refused to give DCFS her home address
and would not tell DCFS where Yasmine resided or the hospital
where Yasmine was born. Mother also declined to bring Yasmine
to a DCFS office. Although mother provided DCFS with her
phone number, it was not in service two days later. DCFS’s effort
several days later to contact mother using a different phone
number it received from Cassandra’s foster parent was also
unsuccessful.
On October 19, 2021, a DCFS social worker went to the
police department to file a missing person’s report for Yasmine.
The police called mother, who answered. After speaking with
police, mother agreed to allow DCFS to visit her home to meet
Yasmine.
A DCFS social worker visited mother’s home later that day.
The home, a one-bedroom apartment, was organized,
appropriately furnished, and free from visible hazards. Mother
was residing there with Yasmine and father. Yasmine’s crib was
clean and the social worker observed plenty of clothing and
diapers. The social worker did not observe any drugs or drug
paraphernalia. The kitchen had ample food, the utilities worked,
and there were no observable dangers in the home that would
affect Yasmine.
5
Mother denied any abuse or neglect of Yasmine and said
both she and father had significant support from their relatives.
Mother explained that she had not wanted DCFS to meet
Yasmine because of her concern that DCFS would remove
Yasmine from her custody.
Mother denied smoking marijuana regularly and reported
smoking it “on occasion when she is out of the home with
friends.” She also denied smoking marijuana in the home or
when Yasmine was in her care. She had only smoked a small
amount of marijuana once when she was pregnant due to her
nausea, and agreed to drug test on demand.
Father also denied any abuse or neglect of Yasmine and
reported that mother took good care of Yasmine. Father said he
had no concern about mother using drugs, and that mother did
not smoke marijuana in the home or in Yasmine’s presence.
Father denied any substance use.
DCFS contacted father later that day to ask about his
criminal history, including several arrests and charges for drug
possession. At first, father said he was only arrested in 1999 for
assault. After the social worker asked him to be forthcoming,
father acknowledged an arrest in 2019 for possession of cocaine,
but said he was later exonerated. He also denied any past or
current substance use.
On October 21, 2021, father agreed to drug test the
following day. However, father failed to appear for the drug test.
On October 26, 2021, father told DCFS he was unable to take the
drug test the week before because he was taking care of Yasmine,
but remained willing to test. DCFS then informed him it would
submit a referral for a drug test the next day.
6
Also on October 26, 2021, DCFS received a positive
marijuana test result from mother’s drug test six days earlier.
Then, on October 27, 2021, father told DCFS he would not
take a drug test unless a court ordered him to do so because he
believed it violated his constitutional rights. DCFS informed him
a drug test would assist with its investigation given his prior
criminal history. Father said his criminal history report was
incorrect, that his identity must have been stolen, and that he
had not been arrested for possession or sale of drugs since 2010.
When asked about arrests in 2016, 2017, and 2019 involving
possession and sale of cocaine and phencyclidine, father recanted
his earlier statement but said he had “ ‘paid [his] dues to
society’ ” and should not be questioned about his criminal history.
That same day, DCFS received Yasmine’s medical records
from the hospital where she was born.3 The records indicated
that Yasmine was born healthy with negative toxicology results.
The records also stated, however, that mother reported using
marijuana once or twice weekly and had used marijuana as
recently as three weeks before Yasmine was born. The records
also stated, “Newborn affected by material use of other drugs of
addiction,” but further details were not provided.
On October 28, 2021, the juvenile court denied DCFS’s
request for a removal order.
Several days later, mother told DCFS that father was not
Yasmine’s father and should not be involved in Yasmine’s
dependency case. According to mother, father had been providing
support for mother and Yasmine because he was a kind person.
3 Mother provided DCFS with information about the hospital
where Yasmine was born during the earlier home visit.
7
DCFS contacted father the next day. Father said he was
indeed Yasmine’s father and believed that mother was lying so
that he would not be involved in the dependency proceedings. He
also said he would cooperate with DCFS and any court orders
because his priority was Yasmine’s well-being, and that he would
care for Yasmine by himself if needed.
Based on its investigation, DCFS’s November 4, 2021
detention report recommended Yasmine be detained.
B. Dependency petition
On November 12, 2021, DCFS filed a dependency petition
pursuant to section 300 on behalf of Yasmine.
Counts a-1 and a-2 alleged that mother’s history of
domestic violence with George and history of physical abuse of
Cassandra and J.K. placed Yasmine at risk of serious physical
harm. Based on those same allegations, counts b-1 and b-2
alleged that mother had failed to adequately protect Yasmine.
Count b-3 alleged that mother had a history of marijuana
abuse, including a history leading to dependency jurisdiction over
J.K. and Cassandra, and was a current abuser of marijuana,
rendering mother unable to provide regular care to Yasmine.
Count b-3 further alleged that father “reasonably should have
known” of “mother’s substance abuse and failed to take action.”
Count b-4 alleged that father had a criminal history of
possession and sale of drugs and was a Registered Controlled
Substance Offender, placing Yasmine at serious risk of physical
harm.
Counts j-1, j-2, and j-3 mirrored counts a-1, a-2, and b-3,
respectively, and alleged that because of mother’s abuse and
neglect of J.K. and Cassandra, there was a substantial risk of
abuse or neglect to Yasmine.
8
At a November 18, 2021 hearing, the juvenile court found
father to be Yasmine’s presumed father. It further ordered that
Yasmine be detained from parental custody, granted the parents
monitored visits, and set the matter for an adjudication hearing.
C. Jurisdiction/disposition report
DCFS prepared a jurisdiction/disposition report dated
January 26, 2022.
The report described DCFS’s follow-up interview with
mother on December 6, 2021. Mother met father five years
earlier, and had been residing with him for about four months.4
They were not married. Prior to Yasmine’s removal, she had
been residing with mother and father, who together had been
caring for Yasmine.
Regarding her marijuana use, mother said that marijuana
was not a “heavy drug and she used it ‘once in a blue moon.’ ”
She used it when she was out with friends, two to four times a
month; she last smoked it about two weeks earlier. Mother had
been using marijuana since she was 19 years old and her
consumption had not increased since then. Mother denied
4 Although the DCFS report states that mother “reported
that she has been residing with Mrs. Davis for about four
months” (italics added), the reference to “Mrs.” appears to be an
error. Immediately preceding that, the report states that
“Mother reported that she resides with . . . father” at an
apartment in Inglewood. Citing the same page of the DCFS
report, respondent DCFS’s brief states that mother “reported she
had been residing with father for approximately four months.”
Father’s reply brief does not contend that DCFS’s assertion was
erroneous.
9
George’s claim that she smoked marijuana “all the time,”
including inside his home.
Mother did not believe her marijuana use affected her
parenting. She said that there were “many people who smoke
marijuana and take care of their children.” She also said she did
not keep marijuana inside the home.
Father knew about her marijuana use, according to mother.
She said father “ ‘let’s me do my own thing,’ ” and “is ‘ok with it.
I’m grown, it’s ok, [I’m] not negligent with my duties.’ ” She
emphasized that she used marijuana recreationally, and did not
use it around Yasmine.
According to the report, mother did not report to a drug test
on December 22, 2021.
DCFS also spoke with father on December 27, 2021.
Regarding the allegation that he failed to protect Yasmine from
mother’s marijuana abuse, father said, “ ‘I have to agree to
disagree with that. I disagree that I should have taken measures
or taken her out of the equation for the safety or wellbeing of my
daughter. But I can understand it that I should have done
something about the situation of mother smoking marijuana.’ ”
Father “knew if anyone jeopardized his daughter’s safety, it
would not be ok, but he did not know that mother using
marijuana would lead to this”—he only thought “heavy drugs”
would, but he now understood otherwise.
Father learned about mother’s marijuana use about one
week after meeting her, about five years earlier. He
acknowledged mother smoked marijuana while pregnant with
Yasmine. He said he told mother he wasn’t “in agreement” with
it and spoke to her about it on different occasions, and had even
warned her he’d be resentful if Yasmine was born with any
10
resulting health problems. Mother would then decrease her use.
According to father, mother’s marijuana use varied from one to
three times weekly, and up to twice daily. Sometimes she used it
less. Father now agreed mother should stop smoking marijuana
and complete any court-ordered services necessary to reunify
with Yasmine.
According to DCFS’s report, father had a substantial
criminal history, including several convictions for possession and
sale of drugs.5 When asked about his criminal history and
substance use, father said, “ ‘I’m not a user’ ” and Yasmine was
“ ‘not in . . . jeopardy.’ ” Father acknowledged using marijuana
recreationally when he was younger, but had not used it since
1999; he also acknowledged using phencyclidine recreationally in
1991, but not since then. He further explained that although he
5 Father had (1) a May 1986 misdemeanor conviction for
carrying a loaded firearm in public; (2) an October 1986
misdemeanor conviction for possession of narcotics/controlled
substance for sale; (3) an October 1987 felony conviction for
possession/purchase of cocaine base for sale; (4) an April 1992
felony conviction for possession of a controlled substance and
loaded firearm; (5) an October 1997 felony conviction for
possession of a controlled substance; (6) an February 1999 felony
conviction for kidnapping; and (7) a May 2016 felony conviction
for possession of phencyclidine for sale. Father also appears to
have been convicted of a felony in October 1994, but the nature of
the conviction is not clear from the information in the
jurisdiction/disposition report. The jurisdiction/disposition report
also indicates that father was convicted in December 2016 of
violating Penal Code section 11378.5, which criminalizes
possession “for sale [of] phencyclidine or any analog or any
precursor,” but the nature of the conviction is not otherwise
described.
11
had initially objected to DCFS’s request that he drug test, he was
now willing to do so “to show to [the] court that he is doing what
he needs to” do to reunite with Yasmine. Father also
acknowledged having a criminal history but said “he has
completed his time” and was exonerated of the most recent
charges.
Father tested negative for drugs on December 15 and 28,
2021.
D. Jurisdiction hearing
The juvenile court held a jurisdiction hearing on January
27, 2022, regarding the pending dependency petitions involving
Cassandra and Yasmine. The court admitted the DCFS reports
described above and heard testimony and argument from the
parties.
Relevant here, mother testified that she used marijuana to
treat an injury that arose from a car accident. She did not smoke
it; she ate edible marijuana. Mother did not believe her drug use
posed a risk to Yasmine. She never informed DCFS that she
used marijuana to treat an injury because she “didn’t think it
was a big issue.”
Following argument of counsel, the court sustained count b-
3 involving mother’s marijuana abuse and father’s failure to
protect Yasmine. The court cited evidence that mother used
marijuana during her pregnancy, used marijuana up to twice a
day, and that father was aware of mother’s marijuana use. The
court also found that father understood the dangers posed by the
drug during mother’s pregnancy and after, given father’s own
history of drug use. Last, the court did “not find credible
[father’s] statements that he tried to protect” Yasmine.
12
The court also sustained counts j-1 and j-2 based on
mother’s history of domestic violence with George and prior
physical abuse of J.K. and Cassandra. It dismissed the
remaining counts.
E. Disposition hearing
The court held a disposition hearing on February 4, 2022.
It declared Yasmine a dependent, removed Yasmine from her
parents, ordered DCFS to provide the parents with reunification
services, and granted the parents monitored visitation.
Regarding father, the court again observed that father
failed to protect Yasmine from mother’s substance abuse.
Although the court was encouraged by father’s recent negative
drug tests,6 it did not “think the risk has been sufficiently
addressed to prevent removal today.”
Father timely appealed from the court’s jurisdictional and
dispositional orders.7
6 According to information submitted by DCFS to the
juvenile court on February 3, 2022, father had negative drug test
results on January 11 and 25, 2022.
7 George also appealed. After examination of the record, his
appointed counsel was unable to identify any arguable issues and
so informed this court. George did not thereafter present any
issues for the court’s consideration, and we dismissed his appeal
on December 30, 2022. (See In re Phoenix H. (2009) 47 Cal.4th
835, 838.)
On February 3, 2022, DCFS filed a motion asking us to dismiss
father’s appeal “as it concerns” Cassandra because father did not
raise any claim of error regarding the orders affecting Cassandra.
13
DISCUSSION
Father contends substantial evidence does not support the
juvenile court’s jurisdictional order sustaining the allegation in
count b-3 of the dependency petition that father failed to protect
Yasmine from the risks posed by mother’s substance abuse. As a
result, he contends the jurisdictional order and dispositional
order based on it should be reversed, and that the dependency
petition should be dismissed as to him entirely.
I. This case is justiciable
Respondent DCFS argues that father’s appeal is not
justiciable. According to DCFS, because father challenges only
one of several grounds for the juvenile court’s exercise of
dependency jurisdiction over Yasmine, we need not consider
whether the juvenile court’s decision sustaining the allegation
involving father’s failure to protect Yasmine is supported by
sufficient evidence. We disagree.
As DCFS points out, when “a dependency petition alleges
multiple grounds for its assertion that a minor comes within the
dependency court’s jurisdiction, a reviewing court can affirm the
juvenile court’s finding of jurisdiction over the minor if any one of
the statutory bases for jurisdiction that are enumerated in the
petition is supported by substantial evidence. In such a case, the
reviewing court need not consider whether any or all of the other
alleged statutory grounds for jurisdiction are supported by the
evidence.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451; see
also In re I.A. (2011) 201 Cal.App.4th 1484, 1492.)
We deny the motion as moot. Father’s appeal does not concern
any of the orders regarding Cassandra, who is not father’s child.
14
But father’s appeal does not challenge the juvenile court’s
exercise of dependency jurisdiction over Yasmine. Father
acknowledges that “the unchallenged findings as to the mother
will continue to support dependency jurisdiction over Yasmine
pursuant to section 300, subdivisions (b)(1) and (j).” Rather,
father’s appeal challenges the juvenile court’s decision sustaining
the allegation in count b-3 of the dependency petition that father
failed to protect Yasmine from mother’s substance abuse, which
was the basis for the court’s subsequent dispositional order
removing custody of Yasmine from father.
Our Supreme Court’s recent decision in In re D.P. (2023) 14
Cal.5th 266 (D.P.), supports our conclusion that father’s appeal is
justiciable. There, the court considered whether a challenge to a
juvenile court’s jurisdictional finding was moot where the
juvenile court terminated its jurisdiction during the pendency of
the parents’ appeal. (See id. at pp. 275–276.) D.P. observed that
“a case is not moot where a court can provide the plaintiff with
‘ “effect[ive] relief.” ’ [Citation.] In this context, relief is effective
when it ‘can have a practical, tangible impact on the parties’
conduct or legal status.’ ” (Id. at 277.) D.P. concluded that the
stigma associated with a juvenile court’s jurisdictional finding is
not enough by itself to overcome mootness, and that such stigma
“must be paired with some effect on the plaintiff’s legal status
that is capable of being redressed by a favorable court decision.
[Citation.] For example, a case is not moot where a jurisdictional
finding affects parental custody rights [citation], curtails a
parent’s contact with his or her child [citation], or ‘has resulted in
[dispositional] orders which continue to adversely affect’ a parent
[citation].” (Id. at pp. 277–278.)
15
Here, the juvenile court’s jurisdictional finding that father
failed to protect Yasmine from the risks posed by mother’s
substance abuse resulted in a dispositional order removing
Yasmine from father’s custody.8 Neither party has informed us
that the dispositional order is no longer in effect or that father’s
custody of Yasmine has been reinstated. Thus, we conclude
father’s appeal remains justiciable. (See D.P., supra, 14 Cal.5th
at 283 [“where a jurisdictional finding ‘serves as the basis for
dispositional orders that are also challenged on appeal’ [citation],
the appeal is not moot”]; In re M.W. (2015) 238 Cal.App.4th 1444,
1452 [even though parent does not contest all jurisdictional
findings, court will consider parent’s appeal where jurisdictional
finding at issue “ ‘serves as the basis for dispositional orders that
are also challenged on appeal’ ”].)
II. Applicable law and standard of review
Section 300, subdivision (b)(1), authorizes a juvenile court
to exercise dependency jurisdiction over a child if the “child has
8 DCFS contends father does not challenge the removal
order. We believe this oversimplifies father’s appeal. True,
father’s challenge to the dispositional order removing Yasmine
from his custody is based on his challenge to the jurisdictional
order sustaining the portion of count b-3 alleging father failed to
protect Yasmine. But, as noted, the juvenile court’s order
removing Yasmine from father’s custody was based squarely on
its earlier determination that father failed to protect Yasmine.
Thus, reversal of the juvenile court’s jurisdictional order
regarding father’s failure to protect Yasmine could result in
effective relief for father, particularly because DCFS fails to show
any other basis for the juvenile court’s order removing Yasmine
from father’s custody.
16
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 the child’s parent or guardian to adequately supervise
or protect the child.” (§ 300, subd. (b)(1)(A); see In re L.W. (2019)
32 Cal.App.5th 840, 848 [describing elements].) “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.)
Additionally, our Legislature has declared that the purpose
of our dependency statutes “is to provide maximum safety and
protection for children who are currently being physically,
sexually, or emotionally abused, being neglected, or being
exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm. . . .
The provision of a home environment 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, subd. (a).) That is especially so for young children; in
cases involving children of “tender years,” a finding of “substance
abuse is prima facie evidence of the inability of a parent or
guardian to provide regular care resulting in a substantial risk of
physical harm.” (In re Drake M. (2012) 211 Cal.App.4th 754, 767,
disapproved on another ground in D.P., supra, 14 Cal.5th at
17
p. 283; see also In re Christopher R., supra, 225 Cal.App.4th at
p. 1216 [“Exercise of dependency court jurisdiction under section
300, subdivision (b), is proper when a child is ‘of such tender
years that the absence of adequate supervision and care poses an
inherent risk to [his or her] physical health and safety.’ ”].)
“In a challenge to the sufficiency of the evidence to support
a jurisdictional finding, the issue is whether there is evidence,
contradicted or uncontradicted, to support the finding. In making
that determination, the reviewing court reviews the record in the
light most favorable to the challenged order, resolving conflicts in
the evidence in favor of that order, and giving the evidence
reasonable inferences. Weighing evidence, assessing credibility,
and resolving conflicts in evidence and in the inferences to be
drawn from evidence are the domain of the trial court, not the
reviewing court. Evidence from a single witness, even a party,
can be sufficient to support the trial court’s findings.” (In re
Alexis E., supra, 171 Cal.App.4th at pp. 450–451.)
III. Jurisdictional order
Father contends substantial evidence does not support the
juvenile court’s jurisdictional order regarding count b-3, and in
particular, its determination that father’s failure to protect
Yasmine from mother’s substance abuse caused a substantial risk
of harm to Yasmine. Father argues that there was no defined
risk of harm to Yasmine at the time of the jurisdictional hearing.
We disagree.
We begin by noting the undisputed evidence of mother’s
longstanding history of marijuana abuse. Mother, 31 years old at
the time of Yasmine’s birth, acknowledged regularly using
marijuana since she was 19 years old, including during her
pregnancy with Yasmine. Mother tested positive for marijuana
18
twice during her pregnancy with Yasmine and informed the
hospital where Yasmine was born that she used marijuana one to
two times weekly.9 Mother also tested positive for marijuana the
month after Yasmine was born and failed to appear for a test a
few months later.
Moreover, mother persisted in her regular marijuana use
during her pregnancy with Yasmine, even though the juvenile
court exercised dependency jurisdiction in 2016 over Cassandra
and J.K. due in part to mother’s marijuana abuse. Mother was
also undeterred in her regular marijuana use by DCFS’s
investigation—ongoing at the time of her pregnancy with
Yasmine—of another dependency referral for Cassandra
involving, among other allegations, mother’s marijuana abuse.
And even though the dependency petition filed on behalf of
Yasmine included an allegation regarding mother’s marijuana
abuse—the third dependency petition that included an allegation
involving mother’s marijuana abuse—at her December 2021
interview with DCFS mother maintained that her marijuana
abuse had not affected her parenting. (See In re Gabriel K.
9 Although the evidence regarding the frequency of mother’s
use varied—she told the hospital where Yasmine was born in
September 2021 that she used it once or twice weekly; she told
DCFS in December 2021 that she used it two to four times
monthly and had been using it since she was 19; and father
reported to DCFS in December 2021 that she used it one to three
times weekly, up to twice daily—it was clearly regular and
longstanding. Also, we note that mother initially told DCFS in
October 2021 that she used marijuana only once during her
pregnancy to treat nausea, contrary to other evidence
establishing her repeated use.
19
(2012) 203 Cal.App.4th 188, 197 [“One cannot correct a problem
one fails to acknowledge.”].)
Finally, mother’s evasiveness during DCFS’s initial
attempts to meet and assess Yasmine—for example, denying that
the newborn she was carrying was Yasmine during a monitored
visit with Cassandra, and refusing to let DCFS know where
Yasmine resided—provided further support for the juvenile
court’s conclusion that mother’s substance abuse posed a
substantial risk to Yasmine. (See In re E.E. (2020) 49
Cal.App.5th 195, 213–215 [citing mother’s evasive behavior
during agency’s attempt to investigate dependency referral as
support for juvenile court’s conclusion that mother’s substance
abuse posed a risk to children].) Mother only allowed DCFS to
visit her residence to meet Yasmine after she was contacted by
police.
In the face of this evidence, we accept the juvenile court’s
determination, which neither mother nor father has appealed,
that mother’s substance abuse rendered her incapable of
providing regular care and supervision of Yasmine. As noted, in
cases involving a child of “tender years” like Yasmine, a “finding
of substance abuse is prima facie evidence of the inability of a
parent or guardian to provide regular care resulting in a
substantial risk of physical harm.” (See In re Drake M., supra,
211 Cal.App.4th at p. 767; see also In re Christopher R., supra,225 Cal.App.4th at p. 1216.)
Furthermore, we conclude that substantial evidence
supported the juvenile court’s determination that father failed to
protect Yasmine from the risk posed by mother’s substance
abuse. Father does not dispute that he knew about mother’s
regular marijuana use, including during her pregnancy with
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Yasmine. Nor does he dispute that he told DCFS during his
interview in October 2021, more than a month after Yasmine was
born, that he had no concerns about mother’s marijuana use.
Indeed, when asked during her December 2021 interview with
DCFS whether father knew about her marijuana use, mother
explained he “ ‘let’s me do my own thing’ ” and “is ‘ok with it.’ ”
That father condoned mother’s substance abuse during her
pregnancy with Yasmine and after Yasmine was born—instead
of, for example, encouraging mother to cease her substance abuse
and seek treatment—supported the juvenile court’s
determination that father failed to protect Yasmine from the
risks posed by mother’s substance abuse. (See In re J.C. (2014)
233 Cal.App.4th 1, 6 [sustaining jurisdiction related to father
because he “knew mother was taking drugs while she was
pregnant and did nothing to protect his unborn child from her
conduct”].)
We acknowledge father later told DCFS during his
interview in December 2021 that he was not “in agreement” with
mother’s marijuana use during her pregnancy with Yasmine, and
that mother would decrease her use after he spoke to her about
it. But the juvenile court found that father’s statements
regarding his efforts to protect Yasmine were not credible.10 As a
reviewing court, we do not revisit that credibility determination.
(See In re Alexis E., supra, 171 Cal.App.4th at pp. 450–451.)
Also, the juvenile court’s credibility determination was supported
10 Father emphasizes that at the jurisdictional hearing,
DCFS’s counsel stated that DCFS conceded that father did as
much as he could to protect Yasmine from mother’s substance
abuse. Given the juvenile court’s credibility finding, we do not
place much weight on the statement of DCFS’s counsel.
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by the record. Father was not forthright with DCFS about his
history of drug-related convictions or prior drug use. The trial
court could infer from that evidence, as well as father’s initial
lack of concern about mother’s marijuana abuse, that father’s
later statement to DCFS that he had concerns about mother’s
marijuana use while she was pregnant with Yasmine was not
credible.
Father emphasizes that although he did not express
concern about mother’s marijuana use during his interview with
DCFS in October 2021, he had been under the misimpression
that DCFS would only intervene if a parent was using “ ‘heavy
drugs.’ ” He notes that by the time of his interview with DCFS in
December 2021, he conceded he should have “done something
‘about the situation of mother smoking marijuana,’ ” and was
willing to accept services and cooperate with DCFS in order to
regain custody of Yasmine. He also points to his four negative
drug test results from December 2021 and January 2022.
Although we commend father for this, it is not our role as a
reviewing court to reweigh the evidence—we review the record in
the light most favorable to the juvenile court’s order and resolve
conflicts in the evidence in favor of that order. (See In re Alexis
E., supra, 171 Cal.App.4th at pp. 450–451.) It was therefore the
trial court’s province, not ours, to weigh this evidence against the
other evidence in the record, including father’s initial lack of
concern about the impact of mother’s substance abuse on
Yasmine.
In his reply brief, father also argues the juvenile court
“held father’s past drug history against him in finding count b-3
true, finding he should ha[ve] been ‘sufficiently aware’ of the
dangers of drug use during pregnancy and afterwards.” Father
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argues the juvenile court’s conclusion was “speculative” and
further contends that “father’s past criminal history alone was
not a basis for jurisdiction in count b-3.” We disagree that the
juvenile court’s finding was speculative. Because father
acknowledged having used marijuana recreationally in the past,
the juvenile court reasonably found that father would have
understood the impact of mother’s abuse of the drug. We also
disagree that the juvenile court sustained count b-3 based on
father’s criminal history. As explained, the juvenile court cited
father’s drug history—which included past marijuana use in
addition to several convictions for possession and sale of drugs—
as a basis for its finding that father understood the risks posed by
mother’s abuse of marijuana.
Last, father emphasizes that during DCFS’s home visit in
October 2021, the home was organized, appropriately furnished,
and free from visible hazards; that there were lots of clothing and
diapers for Yasmine; and that both he and mother had caregiving
support from their families. But such evidence does not detract
from the substantial risk posed to Yasmine by mother’s ongoing
substance abuse. In his December 2021 interview, only a month
before the jurisdictional hearing, father confirmed that he and
mother were still in a relationship, that mother “comes off and on
to his home,” and that mother and he “were responsible for the
care of” Yasmine. It therefore would have been reasonable for
the juvenile court to infer that, notwithstanding the evidence
cited by father, mother would sometimes be alone caring for
Yasmine and that her substance abuse would pose a substantial
risk of harm to Yasmine. (See In re Drake M., supra, 211
Cal.App.4th at p. 767; see also In re Christopher R., supra, 225
Cal.App.4th at p. 1216; § 300.2, subd. (a) [“The provision of a
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home environment 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.”].)
In sum, we conclude that substantial evidence supported
the juvenile court’s jurisdictional finding that father failed to
protect Yasmine from the substantial risk of harm posed by
mother’s substance abuse. (See § 300, subd. (b)(1)(A).)
IV. Dispositional order
Father’s only argument in support of his request that we
reverse the dispositional order, including the removal order, is
that it was premised on the allegedly faulty jurisdictional finding.
Because we have found that substantial evidence supports that
finding and father otherwise does not address the removal order,
we reject father’s contention that the dispositional order must be
reversed.
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DISPOSITION
The January 27, 2022 jurisdictional order sustaining count
b-3 of the dependency petition as to father and the February 4,
2022 dispositional order are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
HEIDEL, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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