In re Miley G. CA2/4

Filed 8/2/23 In re Miley G. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
In re MILEY G., a Person B322215
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. Nos.
22LJJP00189,
22LJJP00189A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
ROBERT A.,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Stephanie Davis, Judge. Affirmed.
Paul Couenhoven, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
INTRODUCTION
Appellant Robert A. (father) challenges the exercise of
juvenile court jurisdiction over his newborn child, M. M.’s
mother tested positive for amphetamines at a prenatal visit; M.’s
meconium1 tested positive for morphine, indicating mother’s use
during pregnancy. Father told the Los Angeles County
Department of Children and Family Services (DCFS) that he had
no idea mother used drugs, and that he had no serious history of
drug use. In fact, father had convictions for possession of
controlled substances and he had lost custody of an older child
through the dependency system as a result of his drug abuse. In
addition, Father failed to appear for two drug tests requested by
DCFS, and he did not provide an accurate address for DCFS to
assess his home. The juvenile court found a basis for jurisdiction
over M. under Welfare and Institutions Code section 300,
subdivision (b)(1)2 based on mother’s drug use, as well as father’s
history of drug use and the lack of any evidence suggesting that
1 Meconium “‘consists of the secretions of the intestine and
stomach, bile, etc., and it constitutes the first stools of the
newborn infant.’” (In re S.K. (2018) 22 Cal.App.5th 29, 32, fn. 2.)
2 All further statutory references are to the Welfare and
Institutions Code.
2
father had addressed his substance abuse issues. Father filed a
notice of appeal from the jurisdiction ruling before the disposition
order was entered.
Because a jurisdiction order is not appealable, under
California Rules of Court, rule 8.406(d), we treat father’s notice of
appeal as filed immediately after the disposition order. We also
exercise our discretion to reach the merits of father’s appeal, even
though mother did not appeal and therefore the juvenile court’s
jurisdiction over M. will remain unchanged. On the merits of
father’s appeal, we reject his contention that the juvenile court’s
findings as to him were not supported by substantial evidence.
We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND3
A. Detention
According to the detention report, M. came to the attention
of DCFS shortly after she was born in May 2022. Mother had
tested positive for amphetamines at a prenatal visit on March 14,
2022. At the hospital, mother admitted to a children’s social
worker (CSW) that she had a long history of methamphetamine
use; she said she had last used methamphetamine in March
2022. Mother said father did not know about her drug use, and
she said father was not a drug user. Mother also reported that
she had lost custody of other children as a result of her drug use.
A CSW associated with previous cases involving mother’s older
children said that mother had a long history of drug abuse (“20
plus years”) and domestic violence, resulting in mother losing
custody of her older children.
3 Father appealed and mother did not, so the background
summarized here focuses on facts relevant to father’s contentions.
3
The CSW also spoke with father at the hospital about drug
use. Father said he had only experimented with marijuana, and
he had last used marijuana seven months earlier. Father also
said that he had been arrested in the past for theft. Father got
upset when he learned of mother’s positive drug test, and said,
“Why am I being investigated? She’s the one that is pregnant!”
Father then walked out of the room. He nevertheless agreed to
take a drug test the following day, May 7. Father said he and
mother planned to live with their friend Mike, and agreed to have
the home assessed by DCFS to determine if it was appropriate for
a newborn. However, mother texted the CSW shortly after the
interview and reported that she and father were planning to
“take a break” from their relationship.
Previous DCFS history showed that in August 2014,
father’s older child, M.’s half-sibling, tested positive for
methamphetamine and methadone at birth. Father was offered
family reunification services and ordered to complete parenting
classes, individual counseling, and a substance abuse program.
Father had two positive drug tests, stopped contacting DCFS,
and failed to complete his court-ordered services. Jurisdiction
over the child was terminated in February 2016; sole legal and
physical custody was granted to the child’s mother. DCFS found
that father also had an “extensive criminal history that involved
drug related offenses.” Father had several convictions including
possession of a controlled substance, possession of controlled
substance paraphernalia, and being under the influence of a
controlled substance. He had registered as a controlled
substances offender in 2016.
Mother was discharged from the hospital; M. had a medical
issue that required her to remain hospitalized for several
4
additional days. Father was a “no-show” for his drug test
scheduled for May 7. The CSW and father exchanged voicemail
messages on May 10; father stated that he and mother were no
longer in a relationship. When the CSW went to the home where
mother and father said they would be living, a man who refused
to identify himself said, “No baby lives here or will live here.”
When the CSW attempted to call father on May 16, there was a
message that father’s voicemail was full.
M. was placed with a foster family upon her discharge from
the hospital. DCFS stated in its detention report that it had
immediate safety concerns about M., since the parents did not
have a stable living arrangement, both parents had a long history
of substance abuse, both parents had lost custody of M.’s older
half-siblings, and father failed to appear for his drug test.
On May 16, 2022, DCFS filed a juvenile dependency
petition under section 300, subdivisions (b)(1) and (j). Count b-1
alleged that mother had a history of drug abuse, was a registered
controlled substances offender, had a criminal history involving
drug-related convictions, and was current substance abuser,
rendering her incapable caring for M. Count j-1 included similar
allegations regarding mother’s history and substance abuse, and
noted that mother’s other children had been removed from her
care due to her substance abuse. Count b-2, the only allegation
involving father, alleged that father had a history of substance
abuse and was a current user of marijuana, rendering him
incapable of caring for M.
At the detention hearing on May 17, 2022, the juvenile
court found a prima facie case to exercise jurisdiction over M.
under section 300. The court ordered that M. remain detained
5
from both parents, and ordered monitored visitation for both
parents.
B. Jurisdiction
The jurisdiction/disposition report filed June 29, 2022
stated that M. remained with a foster family and was doing well.
Mother was in an inpatient substance abuse treatment program.
Mother told the CSW that she last used drugs in August 2021,
and she had been clean for two years. Mother denied telling the
CSW in the hospital that she had used drugs while pregnant with
M. Mother also said she had been taking Adderall from someone
else’s prescription. The CSW asked mother why she entered a
substance abuse program if she had been clean for years; mother
said she wanted to address her problems and be a better mother.
Mother stated that she had six older children in the dependency
system with whom she had failed to reunify. DCFS noted in its
report that M.’s meconium testing result had come in from the
hospital, and it was positive for morphine.
The DCFS investigator met with father at the DCFS office
on June 13, 2022. Father said he did not know mother used
drugs in general, or while pregnant with M. Father stated that
he also was not a drug abuser; he said he had abused marijuana
in the past but he currently did not use it. However, father
admitted that he was a registered controlled substances offender.
Father said he and mother had been together for four years, and
they wanted to “work out” their issues for the sake of M.
The investigator observed father with M. during a visit the
same day; M. was comfortable with father and responded to his
voice. Father was uncomfortable changing the baby’s diaper and
needed instructions from the CSW about how to clean her.
Father “appeared to get bored caring for the newborn and ended
6
the visit early.” Father was a “no-show” for another drug test on
June 15, 2022.
While at the DCFS office on June 13, the investigator
informed father that a home assessment was required. Father
agreed to a home assessment on June 28. However, father did
not respond to the CSW’s attempts to confirm the appointment.
When the CSW arrived at the address father provided, an
unidentified man said that father was not there and did not live
there, “He only comes around from time to time.”
DCFS found M. to be at high risk for future abuse and
neglect. It noted that mother and father each had a long history
of substance abuse, M. had been exposed to methamphetamine
and morphine in utero, and mother had received only limited
prenatal care. DCFS noted that although mother and father had
been together for four years, father claimed to know nothing of
mother’s drug use history while mother minimized her history,
claimed to be clean for two years, and admitted using someone
else’s prescription Adderall. In addition, father had convictions
for substance use and possession and was a registered controlled
substances offender, yet he had denied any past use of substances
other than marijuana. DCFS noted that father did not have any
substance abuse-related criminal offenses since he had registered
as a controlled substances offender. DCFS recommended that
both parents be denied reunification services in light of the
parents’ failure to reunify with their respective older children.
At the jurisdiction hearing on July 13, 2022, father’s
counsel argued that father’s criminal history regarding controlled
substances was remote; his last conviction for possession of a
controlled substance was in 2011. In addition, father’s DCFS
history with his older child occurred around 2015. Father’s
7
counsel argued that this evidence of past issues did not support a
current finding that father posed a risk to M. M.’s counsel asked
that the petition be sustained, noting that father admitted recent
marijuana use, had not drug tested for DCFS, and he had been
hard to contact, so “we don’t actually know what’s going on with
the father right now.” DCFS’s counsel also noted that father had
not drug tested, and in light of the long-term relationship
between mother and father and mother’s drug use, “there is no
current evidence” that father had “a sober lifestyle.” Counsel for
DCFS therefore also requested that the petition be sustained.
The juvenile court sustained counts b-1 and j-1, noting
mother’s long history of substance abuse, as well as her failure to
reunify with her older children. As to father, the court noted that
he did not show up for his two drug tests, there was no evidence
that father had addressed his substance abuse issues, and “due to
the child’s tender age, that does place the child at a substantial
risk of serious physical harm.” The court therefore sustained
count b-2 as amended to state that “[t]here is no current evidence
that the father has addressed [h]is substantial substance abuse
history.”
The court set the disposition hearing for August 16. On the
day of the jurisdiction hearing, July 13, 2022, father filed a notice
of appeal from “[a]ll orders of July 13, 2022.”
DISCUSSION
A. Premature appeal
DCFS asserts that father’s appeal should be dismissed
because it is from a non-appealable order. DCFS is correct that
the jurisdiction order is not appealable. “The first appealable
order in a dependency case is the dispositional order. The
jurisdictional order is not appealable; a challenge to the
8
jurisdictional findings must be raised in an appeal from the
dispositional order.” (In re T.W. (2011) 197 Cal.App.4th 723,
729.)
In his reply brief, father asks us to construe the notice of
appeal as if it were from the disposition order. We have
discretion to treat a premature notice of appeal “as filed
immediately after the rendition of judgment or the making of the
order.” (Cal. Rules of Court, rule 8.406(d).) The “judgment” here
is the disposition order. (See In re Javier G. (2005) 130
Cal.App.4th 1195, 1199 [“The dispositional order on an original
petition (§ 300) is an appealable judgment”].) On our own
motion, we take judicial notice that the juvenile court entered a
disposition order on August 16, 2022. (Evid. Code, §§ 452, subd.
(d), 459.) We therefore construe father’s notice of appeal as being
filed on that date.
However, we decline father’s invitation to construe the
substance of the notice of appeal to “include the findings and
orders made at disposition.” Based on his notice of appeal and
appellate briefs, father clearly intended only to challenge the
court’s jurisdictional findings. There is no suggestion that the
substance of the juvenile court’s disposition order is at issue in
this case. Moreover, father has not asked that the disposition
order be included in the appellate record either by augmentation
or through judicial notice. Thus, we construe father’s notice of
appeal to be timely rather than premature, but we do not
construe it to challenge the substance of the disposition order.
B. Justiciability
DCFS next contends that father’s appeal should be
dismissed because the issue of jurisdiction is non-justiciable,
correctly pointing out that “where jurisdictional findings have
9
been made as to both parents but only one parent brings a
challenge, the appeal may be rendered moot.” (In re D.P. (2023)
14 Cal.5th 266, 283.) Father acknowledges this, but asks that we
nevertheless exercise our discretion to hear his appeal.
Appellate courts have “inherent discretion to decide certain
challenges to juvenile court jurisdictional findings,
notwithstanding mootness,” where, for example, the jurisdiction
finding could impact the future dependency proceedings or the
child’s placement. (In re D.P., supra, 14 Cal.5th at p. 285.) When
“the outcome of the appeal could be ‘the difference between
father’s being an “offending” parent versus a “non-offending”
parent,’ a finding that could result in far-reaching consequences
with respect to these and future dependency proceedings, [it may
be] appropriate to exercise our discretion to consider the appeal
on the merits.” (In re Quentin H. (2014) 230 Cal.App.4th 608,
613.) We therefore exercise our discretion to consider father’s
contentions on the merits.
C. Analysis
Father contends there was no evidence that his drug use
placed M. at substantial risk of harm. “‘In reviewing a challenge
to the sufficiency of the evidence supporting the jurisdictional
findings and disposition, we determine if substantial evidence,
contradicted or uncontradicted, supports them. “In making this
determination, we draw all reasonable inferences from the
evidence to support the findings and orders of the dependency
court; we review the record in the light most favorable to the
court’s determinations; and we note that issues of fact and
credibility are the province of the trial court.”’” (In re I.J. (2013)
56 Cal.4th 766, 773.)
10
Under section 300, subdivision (b)(1), jurisdiction is
appropriate when a child “has suffered, or there is a substantial
risk that the child will suffer, serious physical harm or illness, as
a result of” the parent’s “failure or inability . . . to adequately
supervise or protect the child,” or the parent’s “inability . . . to
provide regular care for the child due to . . . substance abuse.”
Father does not dispute that he admitted using marijuana,
but he argues there was no evidence that his substance use
placed M. at risk. He argues that his drug-related convictions
occurred more than a decade earlier, and the record did not
reflect a positive drug test after 2015, when he tested positive in
the dependency case with his older child. Father notes the
juvenile court’s finding that there was no evidence father had
addressed his history of substance abuse, but father argues that
“there is little import to be drawn from” this lack of evidence.
We are not persuaded. The court was entitled to rely on
father’s history to determine whether he was able to care for
newborn M. “Evidence of past conduct may be probative of
current conditions” if there is “‘some reason beyond mere
speculation to believe the alleged conduct will recur.’” (In re D.L.
(2018) 22 Cal.App.5th 1142, 1146.) Notably, father lied to DCFS
about his substance use history, stating that he had only
experimented with marijuana but not mentioning his drug-
related criminal arrests, his registration as a controlled
substances offender, or his failure to reunify with his older child
as a result of drug abuse, despite being provided with family
reunification services.
Moreover, the evidence about father’s current ability to
care for M. was limited because father failed to cooperate with
DCFS. Father did not appear for two drug tests, and “a missed
11
drug test, without adequate justification, is ‘properly considered
the equivalent of a positive test result[.]’” (In re Kadence P.
(2015) 241 Cal.App.4th 1376, 1384; see also In re E.A. (2018) 24
Cal.App.5th 648, 657, fn. 6 [“Common sense suggests that a
parent who consistently refuses to drug test without an adequate
explanation does so because he or she knows the results will
show substance abuse”].) Father agreed to a home inspection,
but when the CSW arrived at the given address, the man at the
location said father did not live there. At the sole monitored visit
with M. described in the record, father did not know how to
change M.’s diaper, appeared to become bored with caring for her,
and ended the visit early. None of this evidence suggests that
father was able to care for newborn M., a child “‘of such tender
years that the absence of adequate supervision and care poses an
inherent risk to [her] health and safety.’” (In re Kadence P.,
supra, 241 Cal.App.4th at p. 1384.)
“The court need not wait until a child is seriously abused or
injured to assume jurisdiction and take steps necessary to protect
the child.” (In re N.M. (2011) 197 Cal.App.4th 159, 165.) Here,
where M. was exposed to methamphetamine and morphine in
utero, father and mother both had extensive histories of drug
abuse, father failed to appear for multiple drug tests, and father
did not have a stable home where he could care for M.,
substantial evidence supported the juvenile court’s exercise of
jurisdiction over M. under section 300, subdivision (b)(1).
12
DISPOSITION
The juvenile court’s July 13, 2022 order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, P.J.
MORI, J.
13