In re Daniel M. CA2/7

Filed 7/10/23 In re Daniel M. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re DANIEL M., B317769
a Person Coming Under the
Juvenile Court Law. (Los Angeles County
Super. Ct. No. 18LJJP00544E)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CARLOS M.,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Donald A. Buddle, Judge. Affirmed.
Jamie A. Moran, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jane E. Kwon, Principal Deputy
County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Carlos M., father of nine-year-old Daniel M., appeals from
the juvenile court’s disposition orders removing Daniel from his
care. Carlos contends his longstanding methamphetamine abuse,
which included using the drug while caring for Daniel, did not
support the court’s removal orders. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Daniel Is the Subject of Several Prior Dependency
Proceedings
Carlos and Karina U., Daniel’s mother, have a history of
domestic violence that has resulted in several investigations and
petitions by the Los Angeles County Department of Children and
Family Services. In 2014 the Department received a referral
stating Carlos was arrested for shoving and slapping Karina
during an argument. In 2016 the Department received a referral
stating Carlos was arrested for dragging Karina out of their
house and throwing her belongings on the porch. In
February 2017 the Department received another referral, this
one stating that Carlos, after Karina accused him of using drugs
in front of Daniel, hit Karina in the face and arms and kicked her
in the legs. Daniel was present during the latter incident.
A few weeks after the February 2017 incident, the
Department received a referral stating Carlos had been arrested
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for spousal abuse after another domestic violence incident. This
time, Carlos hit Karina in the head with a rubber dumbbell while
they were arguing again about his drug use, got on top of her
after she fell, and grabbed her jaw. Daniel was present for this
incident too. The Department filed a petition under Welfare and
Institutions Code section 300, subdivision (b),1 alleging Carlos
and Karina’s history of domestic violence, as well as Carlos’s use
of ketamine, methamphetamine, and cannabis, placed Daniel at a
substantial risk of serious physical harm. The juvenile court
sustained the petition, declared Daniel a dependent child of the
court, and removed Daniel from Carlos. The court terminated its
jurisdiction in February 2018 and, after finding Carlos had failed
to substantially complete domestic violence and other court-
ordered programs and had failed to submit to court-ordered drug
testing, granted Karina sole legal and physical custody of Daniel.
A few months later, however, Karina tested positive for
methamphetamine while giving birth to another child. The
Department filed a new petition under section 300,
subdivision (b), which the juvenile court sustained. The court
terminated its jurisdiction in February 2021, this time granting
Karina and Carlos joint legal and physical custody of Daniel.
Once again, however, only a few months elapsed before the
Department filed a new petition. In August 2021 the
Department filed a petition under section 300, subdivision (b),
alleging there had been new incidents of domestic violence
between Karina and Carlos (Karina had gone to Carlos’s home
and hit him in the face) and between Karina and her new
partner. The court sustained the petition and ultimately granted
1 Statutory references are to this code.
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Carlos and Karina joint legal, and Carlos sole physical, custody of
Daniel.
B. The Juvenile Court Sustains the Current Petition
In November 2021, just a few weeks after the most recent
order terminating juvenile court jurisdiction, the Department filed
the petition in this proceeding, alleging there had been yet
another physical altercation between Karina and Carlos. This
time Karina forced her way into Carlos’s home, grabbed him, and
scratched his face; Carlos pushed Karina in the face, causing her
to fall and her nose to bleed. Karina and Carlos were both
arrested for domestic battery and for violating a criminal
protective order. The Department alleged under section 300,
subdivision (b), the recent incident and history of domestic
violence between Karina and Carlos placed Daniel at a
substantial risk of serious physical harm.
Two days after filing the petition, the Department received
a referral stating Karina had again attacked Carlos. In this
incident Karina had followed Carlos in her car while Carlos was
driving his car with Daniel in the back seat. When Carlos
stopped, Karina got out of her car and hit Carlos in the head
several times through his car window. The juvenile court
sustained the petition against both Karina and Carlos, declared
Daniel a dependent child of the court, removed Daniel from
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Karina, placed Daniel with Carlos, and ordered family
preservation services for Carlos.
C. After Carlos Admits to Abusing Methamphetamine,
the Juvenile Court Sustains a Subsequent Petition
and Removes Daniel from Carlos
A few days after the combined jurisdiction and disposition
hearing, Carlos reported to law enforcement that Karina had
kidnapped Daniel. Investigators ultimately learned, however,
that Daniel’s maternal grandmother and uncle (Karina’s mother
and brother) had picked up Daniel from Carlos’s house that
morning for a scheduled visit with Karina and that Carlos had
brought Daniel to their car. Carlos admitted to law enforcement
he was high on methamphetamine and had been using the drug
daily, at which point he was arrested for child abuse. When a
case social worker interviewed Carlos, Carlos admitted that he
smoked methamphetamine every 30 minutes the day he (falsely)
reported the kidnapping and that he used methamphetamine
when Daniel was asleep or at school.
The Department filed a subsequent petition under
section 342, alleging Carlos had a history of drug abuse and was
a current methamphetamine abuser, which placed Daniel at a
substantial risk of serious physical harm. At the jurisdiction and
disposition hearing, the juvenile court removed Daniel from
Carlos, placed Daniel under the care and supervision of the
Department for suitable placement, and ordered separate
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monitored visits for Carlos and Karina.2 Carlos appealed from
the disposition order.3
DISCUSSION
A. Applicable Law and Standard of Review
The juvenile court may remove a dependent child from the
physical custody of the child’s parents if “the juvenile court finds
clear and convincing evidence” that one of the grounds listed in
section 361, subdivision (c), applies. (In re V.L. (2020)
54 Cal.App.5th 147, 154; see In re Ma.V. (2021) 64 Cal.App.5th
11, 24 [the ““heightened burden of proof [for removal] is
appropriate in light of the constitutionally protected rights of
parents to the care, custody and management of the children.””].)
One ground for removal is that “there is or would be a 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 his or her parents. (§ 361, subd. (c)(1); see In re L.O. (2021)
67 Cal.App.5th 227, 244; In re I.R. (2021) 61 Cal.App.5th 510,
520; In re D.P. (2020) 44 Cal.App.5th 1058, 1065.) The juvenile
court must also determine “whether reasonable efforts were made
2 The Department placed Daniel with his maternal aunt.
3 Carlos also filed a notice of appeal from the court’s initial
jurisdiction findings and disposition order. We consolidated the
appeals. In his briefing Carlos does not challenge the original
jurisdiction findings or any other portion of the original
disposition order.
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to prevent or to eliminate the need for removal of the minor from
his or her home” and must “state the facts on which the decision
to remove the minor is based.” (§ 361, subd. (e); see L.O., at
p. 247; D.P., at p. 1065.) “But ‘“‘[t]he parent need not be
dangerous and the minor need not have been actually harmed
before removal is appropriate. The focus of the statute is on
averting harm to the child.’”’” (L.O., at p. 245; see In re K.B.
(2021) 59 Cal.App.5th 593, 605; In re D.B. (2018) 26 Cal.App.5th
320, 328.) “A removal order is proper if based on proof of
parental inability to provide proper care for the child and proof of
a potential detriment to the child if he or she remains with the
parent.” (In re D.D. (2019) 32 Cal.App.5th 985, 996; see In re
Alexzander C. (2017) 18 Cal.App.5th 438, 451, disapproved on
another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989,
1010, fn. 7; In re N.M. (2011) 197 Cal.App.4th 159, 169-170.)
“We review a dispositional order removing a child from a
parent for substantial evidence, ‘keeping in mind that the trial
court was required to make its order based on the higher
standard of clear and convincing evidence.’” (In re M.V. (2022)
78 Cal.App.5th 944, 960; see In re L.O., supra, 67 Cal.App.5th at
p. 245; In re I.R., supra, 61 Cal.App.5th at p. 520; In re Nathan E.
(2021) 61 Cal.App.5th 114, 123.) “In applying this standard of
review, ‘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’” the
facts supporting removal were true. (M.V., at p. 960; see
Conservatorship of O.B., supra, 9 Cal.5th at pp. 995-996.)
“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
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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.” (O.B., at p. 996; see M.V., at
p. 960; Nathan E., at pp. 122-123.)
B. Substantial Evidence Supported the Juvenile Court’s
Order Removing Daniel from Carlos
The juvenile court found the facts requiring removal were
the same “facts found true in the sustained [section 342]
petition”; namely, Carlos had a history of substance abuse,
currently abused methamphetamine, and used
methamphetamine while caring for Daniel. Substantial evidence
supported the court’s findings that, because of Carlos’s drug use,
there was a substantial risk of danger to Daniel if the court
returned him to Carlos and that there were no reasonable means
to protect Daniel other than removal. Not only did Carlos admit
he had used methamphetamine for years, he also admitted he
used methamphetamine while caring for Daniel. (See In re K.B.,
supra, 59 Cal.App.5th at pp. 604, 606 [substantial evidence
supported removal where the father had a “substantial history
with methamphetamine, cocaine, and marijuana” and was not
forthcoming about his current drug use]; In re E.E. (2020)
49 Cal.App.5th 195, 216 [substantial evidence supported removal
where the evidence showed the father “would not protect his
children from mother’s drug problem, and possibly had a drug
problem of his own”]; In re Alexzander C., supra, 18 Cal.App.5th
at p. 450 [because the mother and father “ingested
methamphetamine multiple times a day in the house,” it was
“reasonable to conclude that the children had access to the drug,”
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which created a substantial risk of serious physical harm to the
children].)
Moreover, Carlos’s methamphetamine use had already
negatively impacted Daniel. The conflict between Carlos and
Karina about his drug use was the catalyst for (at least) two
serious domestic violence incidents where Daniel was present.
(See In re Nathan E., supra, 61 Cal.App.5th at p. 124 [substantial
evidence supported removal where the mother failed “over the
course of many years” to refrain from domestic violence in the
children’s presence]; In re V.L., supra, 54 Cal.App.5th at pp. 156-
157 [substantial evidence supported removal where the parents
engaged in multiple domestic violence incidents in the presence
of the children because, “[e]ven if a child suffers no physical harm
due to domestic violence, a ‘cycle of violence between . . . parents
constitute[s] a failure to protect [a child] “from the substantial
risk of encountering the violence and suffering serious physical
harm or illness from it”’”].) Karina also reported that Daniel
found a syringe at Carlos’s house, which supported a reasonable
inference Daniel was exposed to Carlos’s drug use. (See In re
Lana S. (2012) 207 Cal.App.4th 94, 106 [substantial evidence
supported removal where “drug paraphernalia was found within
the reach of the children”].)
The evidence also showed Carlos’s methamphetamine use
negatively affected his ability to care for Daniel. While high on
methamphetamine, Carlos called law enforcement to report
Daniel had been kidnapped, even though Daniel had not been
kidnapped and instead had been given by Carlos to relatives for a
scheduled visit. (See In re Alexzander C., supra, 18 Cal.App.5th
at p. 449 [methamphetamine is “‘an inherently dangerous drug
known to cause visual and auditory hallucinations, sleep
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deprivation, intense anger, volatile mood swings, agitation,
paranoia, impulsivity, and depression’”].) And Karina reported to
a Department social worker that Carlos was acting “weird,”
“sleeping a lot” and “very forgetful,” which further suggested he
could not adequately care for a child as young as Daniel. (See
ibid. [substantial evidence supported removal where the father
admitted that, because of her drug use, the mother “‘would sleep
a lot sometimes’, thus leaving the children unsupervised”].)
Carlos argues substantial evidence did not support removal
because he “took good care of Daniel.” While the record contains
some facts from which the court may have been able to infer
Carlos at times provided adequate care for Daniel—for example,
a case social worker reported that Daniel was well-dressed and
well-fed—we review the record in the light most favorable to the
juvenile court’s findings, not in the light most favorable to
Carlos’s claims. While Daniel may not yet have suffered serious
injury because of Carlos’s methamphetamine abuse, the court
could reasonably infer Daniel was at substantial risk of danger,
given Carlos’s long history of drug use (including while caring for
Daniel) and related incidents of failing to care for Daniel. (See In
re L.O., supra, 67 Cal.App.5th at p. 245 [“‘“‘the minor need not
have been actually harmed before removal is appropriate,’”’” and
the “‘“court may consider a parent’s past conduct as well as
present circumstances”’”]; In re Kadence P. (2015)
241 Cal.App.4th 1376, 1384 [“that [the child] has not yet been
harmed by such [drug] use, without more, is not
determinative”].)
Carlos also contends there were alternatives to removing
Daniel, including court-ordered substance abuse treatment and
drug testing. These may have been possible alternatives, but
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they were alternatives that had already failed. This was not the
first time the juvenile court declared Daniel a dependent child
because of Carlos’s drug use. During the first dependency
proceeding, the court ordered Carlos to participate in parenting
classes, individual counseling, and random drug testing. Carlos
did not comply with those orders. Carlos also told a social worker
for the Department that he had completed drug treatment
programs in the past. (See In re E.E., supra, 49 Cal.App.5th at
p. 217 [substantial evidence supported removal where, “on the
whole, [the parents’] resistant behavior and lack of progress in
services reflect a desire to avoid investigation into the extent of
their drug use and a lack of insight into the serious problems
parental drug use poses”]; In re Lana S., supra, 207 Cal.App.4th
at pp. 105-106 [juvenile court “could reasonably determine there
was no alternative to removal,” given the mother’s “lengthy
history of drug abuse, denial of any drug problem, [and] refusal to
voluntarily drug test and enter drug treatment”]; In re J.C.
(2014) 233 Cal.App.4th 1, 6-7 [substantial evidence supported
removal where the father had “years-long struggles with drug
abuse” and “was prone to relapses,” even after entering a drug
treatment program]; Laura B. v. Superior Court (1998)
68 Cal.App.4th 776, 780 [where the parent exhibited a “clear
demonstration of a determination to maintain a drug habit,” the
juvenile court “reasonably interpreted [the behavior] as
resistance to treatment”].) And Carlos admitted to the social
worker that he had been using methamphetamine at least on and
off since he was in the eighth grade and that he continued to do
so after the Department first initiated dependency proceedings in
2017. (See In re T.V. (2013) 217 Cal.App.4th 126, 133 [“[a]
parent’s past conduct is a good predictor of future behavior”].)
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Substantial evidence supported the trial court’s finding that
requiring Carlos to participate in court-ordered programs was not
a reasonable alternative to removal.
DISPOSITION
The juvenile court’s jurisdiction findings and disposition
orders are affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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