In re Mila A. CA2/2 ( 2021 )


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  • Filed 5/27/21 In re Mila A. CA2/2
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
    In re MILA A., a Person                                      B308744
    Coming Under the Juvenile                                    (Los Angeles County Super.
    Court Law.                                                   Ct. No. 20CCJP03812A)
    LOS ANGELES COUNTY
    DEPARTMENT OF
    CHILDREN AND FAMILY
    SERVICES,
    Plaintiff and Respondent,
    v.
    ERIKA G.,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of Los
    Angeles County, Sabina A. Helton, Judge. Affirmed.
    Karen J. Dodd, under appointment by the Court of Appeal,
    for Defendant and Appellant.
    Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
    Assistant County Counsel, and Veronica Randazzo, Deputy
    County Counsel, for Plaintiff and Respondent.
    ******
    A juvenile court exerted dependency jurisdiction over a
    toddler due to her mother’s persistent use of marijuana. The
    mother appeals, arguing that the court’s decision to exercise
    jurisdiction was not supported by substantial evidence. Her
    arguments lack merit, so we affirm.
    FACTS AND PROCEDURAL BACKGROUND
    I.     Facts
    Erika G. (mother) and Giovany A. (father) have one child
    together—Mila A., born December 2016.
    Mother has used marijuana over the last few years to help
    her sleep. She ingested marijuana even while actively trying to
    conceive and until she learned she was pregnant with Mila,
    which was three or four months after conception. After Mila was
    born, she continued using marijuana nightly with father.
    Although she and father would leave Mila with the paternal
    grandmother while they smoked in the evenings, they would
    retrieve Mila at bedtime and would be Mila’s sole caregivers
    despite being under the influence. After mother ended her
    relationship with father around August 2020 and moved in with
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    maternal grandmother, mother would still use marijuana at
    night and then go to bed while being responsible for Mila.
    Mother minimized both the extent of her marijuana use
    and its impact on Mila. She said she began smoking in high
    school, but stopped and did not start again until she was 18 years
    old. This was contradicted by her admission that she used while
    trying to conceive Mila (which was before mother was 18). She
    said she did not ever smoke inside her residence, but this was
    contradicted by the odor of marijuana in her residence (which she
    blamed on the smell “seeping” into her residence from neighbors’
    nearby use). She said at least one adult was always sober at
    night to care for Mila, but this was contradicted by mother’s
    statement that she and father would retrieve Mila at night after
    they had smoked and by the fact that mother smoked before
    going to bed even after she separated from father.1
    In June 2020, mother tested positive for marijuana and
    father tested positive for marijuana and cocaine. Mother
    promised to voluntarily enroll in a drug treatment program but
    never did.
    II.   Procedural Background
    In mid-July 2020, the Department filed a petition asking
    the juvenile court to exert dependency jurisdiction over Mila on
    the ground that mother and father had a “history of substance
    abuse” and were “current abuser[s]” of marijuana (as to mother)
    and marijuana and cocaine (as to father), which rendered them
    “incapable of providing regular care for the child” and “placing”
    her “at risk of serious physical harm” (thereby rendering
    1    Although maternal grandmother’s boyfriend also lived with
    them, there was no evidence that he ever cared for Mila.
    3
    dependency jurisdiction appropriate under Welfare and
    Institutions Code, section 300, subdivision (b)(1)).2
    Although mother told the Department that she stopped
    using marijuana after the Department filed its petition, mother
    subsequently tested positive for marijuana eight times. Six of
    those results were indicative of daily use and the marijuana
    levels in mother’s test results increased at times when she was
    under close supervision by the Department and the juvenile
    court—namely, the levels in her test results doubled after the
    detention hearing and also increased leading up to the
    adjudication hearing. On October 8, 2020, father drove mother
    and himself to a drug test with Mila in the car, and the
    subsequent results for both of them was positive, but mother
    later denied ever seeing father drive with Mila with drugs in his
    system.
    In November 2020, the juvenile court held a combined
    jurisdictional and dispositional hearing. The court sustained the
    allegations against mother and father, and removed Mila from
    father—but not mother.3 The court ordered family preservation
    services for mother; mother’s case plan required her to submit to
    ten random or on-demand drug tests that had to show decreasing
    levels of marijuana.
    Mother filed this timely appeal.
    2     All further statutory references are to the Welfare and
    Institutions Code unless otherwise indicated.
    3      The juvenile court removed Mila from father’s care because,
    after he failed to submit to several drug tests, he tested positive
    for cocaine and high levels of marijuana.
    4
    DISCUSSION
    Mother argues that substantial evidence does not support
    the juvenile court’s exercise of dependency jurisdiction. Before
    reaching this argument, however, we first address a question of
    justiciability.
    I.     Justiciability
    As a threshold matter, the Department asserts that
    mother’s challenge is not justiciable because father has not also
    appealed, such that the court’s exercise of dependency
    jurisdiction over Mila will remain appropriate based on father’s
    conduct no matter how we resolve mother’s appeal.
    Juvenile dependency jurisdiction attaches to the child, not
    to the parent. (In re I.A. (2011) 
    201 Cal.App.4th 1484
    , 1491
    (I.A.).) Thus, if there is one valid basis for exerting dependency
    jurisdiction over a child, a challenge to any other basis for
    jurisdiction is likely to have no effect on the juvenile court’s
    rulings and thus likely to be little more than an “‘“opinion[] upon
    [a] moot question[] or [an] abstract proposition[].”’” (Eye Dog
    Foundation v. State Board of Guide Dogs for the Blind (1967) 
    67 Cal.2d 536
    , 541; In re D.P. (2014) 
    225 Cal.App.4th 898
    , 902 [“‘[A]s
    long as there is one unassailable jurisdictional finding, it is
    immaterial that another might be inappropriate’”].)
    Appellate courts nevertheless retain the “discretion” to
    hear the merits of a challenge to a juvenile court’s jurisdictional
    finding, even if overturning that finding will have no immediate
    effect on the juvenile court’s assertion of jurisdiction. (I.A., supra,
    201 Cal.App.4th at pp. 1494-1495.) However, courts will
    generally exercise that discretion only upon a showing that (1)
    the challenged finding will have some further consequence in the
    case at issue, such as when the finding “serves as the basis for
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    dispositional orders that are also challenged on appeal,” or (2) the
    challenged finding could have some further consequence in a
    future proceeding, most likely a future dependency or family law
    proceeding, such as when the finding declares the appealing
    parent to be an “offending” parent rather than a “non-offending”
    parent or when the finding itself is “pernicious” or “carries a
    particular stigma.” (In re Drake M. (2012) 
    211 Cal.App.4th 754
    ,
    762-763 (Drake M.); In re M.W. (2015) 
    238 Cal.App.4th 1444
    ,
    1452.)4
    Because the validity of the allegations mother challenges in
    this appeal are what make her an “offending” parent rather than
    a “non-offending” parent, we elect to exercise our discretion to
    reach the merits of mother’s appeal.
    II.    Jurisdictional Finding
    We evaluate the sufficiency of the evidence supporting a
    juvenile court’s jurisdictional finding by asking whether there is
    enough evidence in the record that is reasonable, credible, and of
    solid value that a reasonable trier of fact could reach the same
    conclusion as the juvenile court. (In re K.B. (2015) 
    239 Cal.App.4th 972
    , 979.) In so doing, we consider the record as a
    whole, and resolve all conflicts and draw all reasonable
    inferences to support the juvenile court’s findings. (In re R.T.
    (2017) 
    3 Cal.5th 622
    , 633; In re Lana S. (2012) 
    207 Cal.App.4th 94
    , 103.) Only if the record compels a finding in favor of mother
    as a matter of law must the juvenile court’s jurisdictional finding
    be reversed. (In re I.W. (2009) 
    180 Cal.App.4th 1517
    , 1528,
    4      Although Drake M. articulated three types of showings
    justifying the exercise of discretion, those types fall into the two
    broader categories described above.
    6
    disapproved on other grounds, Conservatorship of O.B. (2020) 
    9 Cal.5th 989
    , 1003, fn. 4, 1011, fn. 7.)
    Under section 300, subdivision (b)(1), a juvenile court may
    exert dependency jurisdiction if, as pertinent here, a “child has
    suffered, or there is a substantial risk that the child will suffer,
    serious physical harm or illness” due to (1) “the failure or
    inability of ... her parent ... to adequately supervise or protect”
    her, or (2) “the inability of the parent ... to provide regular care
    for the child due to the parent’s ... substance abuse.” (§ 300,
    subd. (b)(1).) When the failure to supervise is based on drug
    abuse, courts employ a “tender years” presumption; under that
    presumption, a “finding of substance abuse is prima facie
    evidence of the inability of a parent . . . to provide regular care
    resulting in a substantial risk of physical harm.” (Drake M.,
    supra, 211 Cal.App.4th at pp. 766-767; accord, In re Kadence P.
    (2015) 
    241 Cal.App.4th 1376
    , 1385 (Kadence P.); In re
    Christopher R. (2014) 
    225 Cal.App.4th 1210
    , 1220 (Christopher
    R.).) In such cases, jurisdiction is appropriate even without proof
    of “an identified, specific hazard in the child’s environment.”
    (Drake M., at pp. 766-767, italics omitted.) What is more, risk of
    harm means just that: The juvenile court “need not wait until a
    child is seriously abused or injured to assume jurisdiction . . . .”
    (Kadence P., at p. 1383; In re N.M. (2011) 
    197 Cal.App.4th 159
    ,
    165.)
    Substantial evidence supports the juvenile court’s
    determination that Mila faces “substantial risk . . . [of] serious
    physical harm” due to mother’s “inability” to “supervise” or
    “provide regular care” for her due to mother’s substance abuse.
    (§ 300, subd. (b)(1).) There is substantial evidence to support the
    finding that mother has engaged in substance abuse. Mother has
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    been using marijuana for years. More to the point, mother has
    continued to use even when doing so creates a risk of harm to
    Mila, including when she was trying to conceive, when she is
    responsible for Mila at night, and even when she is transporting
    Mila in a car. Not even supervision by the Department or the
    juvenile court has halted—or even reduced—mother’s use.
    Instead, she missed testing, did not follow through with her
    promise to enroll in a drug treatment program, underreported
    her usage, and was not forthright with the Department about the
    times when her usage has endangered Mila. (In re Natalie A.
    (2015) 
    243 Cal.App.4th 178
    , 186 [substantial evidence of
    substance abuse where father’s drug test results raised
    reasonable inference that his use was more frequent than
    reported and failed to enroll in drug programs as promised]; In re
    K.B. (2021) 
    59 Cal.App.5th 593
    , 601 (K.B.) [substantial evidence
    of substance abuse where mother “had been transparently
    dissembling about her drug use” and “was trying to hide her
    ongoing addiction”]; Kadence P., supra, 241 Cal.App.4th at pp.
    1384-1385 [substantial evidence of substance abuse where
    mother hid drug use and avoided drug tests].) By virtue of the
    tender years presumption, mother’s substance abuse translates
    to a substantial risk of serious physical harm to Mila.
    (Christopher R., supra, 225 Cal.App.4th at p. 1219 [children
    under the age of six are children of tender years].)
    Mother resists this conclusion with three arguments.
    First, mother acknowledges that she has used marijuana
    but argues that there is insufficient evidence that her use rises to
    the level of “substance abuse” within the meaning of Drake M.,
    supra, 211 Cal.App.4th at pp. 766-767, italics added. Drake
    M. held that a parent engages in “substance abuse” only if (1) a
    8
    medical professional has diagnosed the parent as having a
    substance abuse problem, or (2) the parent’s substance abuse
    meets the definition of a substance abuse problem as defined by
    the Diagnostic and Statistical Manual of Mental Disorders
    (DSM). (Id. at p. 766, italics added.) As have several other
    courts, we decline to follow Drake M. to the extent it purports to
    require such a showing in all cases. (In re Rebecca C. (2014) 
    228 Cal.App.4th 720
    , 726; Christopher R., supra, 225 Cal.App.4th at
    p. 1218; K.B., supra, 
    59 Cal.App.5th 593
    , 601.) And even if we
    were to follow the path blazed by Drake M. by looking to the
    DSM, substantial evidence supports a finding of “substance
    abuse” under the most recent, fifth edition of the DSM. That
    edition replaced the definition of “substance abuse” with the
    broader classification of “substance use disorder,” which is met
    when two or three of 11 enumerated factors exist (Christopher R.,
    at p. 1218, fn. 6), and those factors include (1) taking the
    substance in larger amounts or for longer than a person is meant
    to, (2) wanting to cut down or stop using the substance but not
    managing to, and (3) using substances, even if it puts a person or
    others in danger. (Hartney, DSM 5 Criteria for Substance Use
    Disorders (Mar. 21, 2020) Verywell Mind, archived at
     [as of Mar. 19, 2021].) Here,
    mother’s continued—and, indeed, elevated use—of marijuana
    while under the Department’s and juvenile court’s supervision,
    even when that use endangers Mila, meets this definition.
    Second, mother argues that the lawfulness of her
    marijuana use means that that use does not constitute
    “substance abuse.” She is wrong. (In re Alexis E. (2009) 
    171 Cal.App.4th 438
    , 452 [“even legal use of marijuana can be abuse
    if it presents risk of harm to minors”].)
    9
    Third, mother points us to evidence in the record, including
    that Mila was well cared for, happy, and meeting developmental
    milestones, and argues that the dependency court’s finding of risk
    of harm must therefore be based on speculation. (In re Ricardo L.
    (2003) 
    109 Cal.App.4th 552
    , 565 [substantial evidence requires
    more than “mere speculation”].) But because the tender years
    presumption applies, the absence of any “identified, specific
    hazard” does not undermine the juvenile court’s jurisdictional
    finding. Mother likens this case to In re J.A. (2020) 
    47 Cal.App.5th 1036
     (J.A.), but we find J.A. inapt. The majority in
    J.A. concluded that substantial evidence did not support
    dependency jurisdiction due to substance abuse when a mother
    used edible marijuana to alleviate pregnancy symptoms and
    stopped immediately after being told to do so (and her cessation
    was confirmed by postnatal drug tests). (Id. at p. 1047.) Here,
    mother has not ceased using marijuana, has at times used even
    more, and yet has continued to minimize her drug use as well as
    to endanger Mila by leaving her without sober adult supervision
    at night.
    10
    DISPOSITION
    The order is affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
    ______________________, J.
    HOFFSTADT
    We concur:
    _________________________, P. J.
    LUI
    _________________________, J.
    ASHMANN-GERST
    11
    

Document Info

Docket Number: B308744

Filed Date: 5/27/2021

Precedential Status: Non-Precedential

Modified Date: 5/27/2021