In re Ashley R. CA2/1 ( 2021 )

Filed 4/26/21 In re Ashley R. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re ASHLEY R., B308754
a Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 20CCJP04168)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
FRANCISCO R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robin Kessler, Judge Pro Tempore. Affirmed.
John P. McCurley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and William D. Thetford, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_____________________
Francisco R. (Father) appeals from the juvenile court’s
assertion of jurisdiction over his daughter Ashley R. under
Welfare and Institutions Code1 section 300, subdivision (b)(1), as
well as the subsequent dispositional order removing her from
Father. The juvenile court found that Father’s substance abuse
created a substantial risk of serious physical harm to Ashley.
Father denies that his substance use rises to the level of abuse
necessary to exert jurisdiction and remove Ashley from his care.
He also argues that the removal order was improper because the
Department of Child and Family Services (the Department) did
not make or document any reasonable efforts to prevent removal,
and the juvenile court did not consider other available means
that could have protected Ashley.
We affirm the juvenile court’s orders. The record, which
includes Father’s admission of regular methamphetamine use for
at least two years, supports the juvenile court’s finding that
Father had a substance abuse problem. Additionally, the
juvenile court did consider whether means other than removal
could have adequately protected Ashley from Father’s substance
abuse, and properly determined that removal was necessary.
1Subsequent undesignated statutory citations are to the
Welfare and Institutions Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Family
Father had one daughter, Ashley, with Maria O. (Mother)
in 2006. When Ashley was two years old, Mother abruptly left
the family home. At that time, Ashley went to live with Father in
the paternal grandmother’s home. Mother attempted to reclaim
Ashley a year-and-a-half later, but Father ultimately won full
custody. Neither Ashley nor Father have had further contact
with Mother.
In 2016, Father began living in Mexico. While he was gone,
Ashley continued to live with her paternal grandmother. Father
returned in October of 2019, and moved back into the family
home.
B. Initial Petition for Jurisdiction as to Mother
On July 30, 2020, the Department received a report that
Mother had tested positive for amphetamine after giving birth to
her youngest daughter, H.R.2 H.R. later tested positive for
amphetamine.
On August 7, 2020, the Department filed a section 300
petition alleging jurisdiction over Ashley and her half-siblings,
Andrew and H.R., on two counts. Count b-1 alleged that
Mother’s drug use caused H.R. to be born with amphetamine in
her system, unreasonably exposing her to serious physical harm.
Count b-2 alleged that Mother’s history of substance abuse
rendered her incapable of adequately supervising and protecting
the children.
2
Mother also has another child, Andrew B., born in 2010.
Mother, Andrew, and H.R. are not parties to this appeal.
3
At the detention hearing on August 12, 2020, the juvenile
court detained Ashley from Mother, and released her back to
Father’s custody. The Department was ordered to assess case
closure for Ashley.
C. First Amended Petition for Jurisdiction as to Father
When a social worker initially contacted Father on
August 4, 2020, he denied any drug use or criminal history, and
agreed to take a drug test the next day. However, he failed to
return any of the social worker’s calls to arrange the test.
On review of Father’s criminal history, the social worker
discovered he had a 2008 misdemeanor conviction for possession
of a controlled substance; a 2015 felony conviction for possession
of marijuana for sale, which was later reduced to a misdemeanor
after Father completed probation; and a 2016 felony conviction
for carrying a dirk or dagger.
When asked whether Father used any substances, the
paternal grandmother denied ever seeing Father drink alcohol or
use drugs.
The Department later learned that Father had a history of
methamphetamine use. When confronted with this during a
subsequent interview on September 9, 2020, Father claimed he
had been “clean and sober” for two years. He admitted he
continued to use marijuana to regulate his sleep and alleviate
back pain.
Father submitted to a drug test on September 15, 2020,
after he got off from work. He tested positive for 6321 nanograms
per milliliter (ng/ml) of methamphetamine, 1686 ng/ml of
amphetamine, and 769 ng/ml of marijuana. Additionally, his
blood alcohol level measured 0.04. After receiving the test
results, Father admitted to a social worker that he had used
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methamphetamine “at least” once a month for two to three years.
He also stated that he smoked marijuana three to four times a
week and drank alcohol twice a week. Father told the social
worker that he knew that he “messed up,” that he had “a
problem,” and that he was willing to do anything it took to get
sober. He agreed to move out of the family home that day to
ensure that Ashley could remain in the family home. Later that
day, the paternal grandmother reiterated that she did not know
that Father was using drugs.
On September 28, 2020, the Department filed an ex parte
application to alter the court’s prior detention order, pursuant to
section 385. The Department recommended that the juvenile
court terminate its prior order releasing Ashley to Father’s
custody, and instead place Ashley in the custody of her paternal
grandmother. The juvenile court granted the application on
October 2, 2020.3
Father took a second drug test on October 13, 2020. He
tested positive for 350 ng/ml of marijuana, but tested negative for
methamphetamine and other substances.
On October 19, 2020, the Department filed a first amended
section 300 petition.4 In addition to the two counts concerning
Mother, the amended petition alleged jurisdiction over Ashley
3 In this and subsequent orders, references are made to
Ashley’s placement “in Shelter Care under the supervision of
[the] Department.” However, the reporter’s transcript indicates
that Ashley remained in her paternal grandmother’s home
throughout the proceedings.
4This petition was later interlineated to reflect a
settlement between the Department and Mother. Father’s count
b-3 was unaffected.
5
pursuant to section 300, subdivision (b)(1), based on Father’s
substance abuse. Count b-3 alleged that Father “has a history of
substance abuse and is a current abuser of methamphetamine
and amphetamine which renders . . . [F]ather incapable of
providing [Ashley] with regular care and supervision . . .
endanger[ing] the child’s physical health and safety and plac[ing]
the child at risk of serious physical harm.” The Department did
not prepare a separate jurisdiction report regarding these
allegations.
D. Jurisdictional and Dispositional Hearing
On November 6, 2020, the juvenile court held a combined
jurisdictional and dispositional hearing to consider the
allegations in the first amended petition. During the hearing,
Father’s counsel suggested that Father’s drug use did not rise to
the level of substance abuse warranting dependency jurisdiction,
especially since Father had tested negative for
methamphetamine three weeks prior to the hearing. Father’s
counsel also argued the Department could not demonstrate any
nexus of harm to Ashley.
The juvenile court found that the number of drugs present
in Father’s system in “substantial” amounts at his first drug test,
together with his admission that his regular drug use was a
problem, indicated a serious substance abuse problem that posed
a substantial risk to Ashley’s safety. The juvenile court noted
that Ashley “had only been in [Father’s] care for a short period of
time when the testing happened,” and that it did not have to wait
until the child was actually harmed by Father’s substance abuse
to exert jurisdiction. Accordingly, the juvenile court sustained
6
count b-3, and asserted jurisdiction over Ashley under section
300, subdivision (b)(1).5
Next, the juvenile court found by clear and convincing
evidence that removal from Father was necessary. Father’s
counsel argued that Father should be allowed to return to the
family home and resume custody of Ashley. His counsel
maintained that other relatives living in the home, including the
paternal grandmother, could protect Ashley now that they knew
about Father’s substance abuse. The juvenile court rejected
Father’s argument, stating that it “[found] it difficult to believe
they had no idea he was using.” The court further noted that
Father “tested positive for alcohol at a .04 sometime in the
middle of the day knowing that he had to drug test,” raising
further concern that the other family members “knew, but did not
protect themselves.”
Ashley was placed with her paternal grandmother. The
juvenile court ordered monitored visitation with Father, to be
modified to unmonitored visits in the family home once he had
four consecutive clean drug and alcohol tests.
Lastly, over Father’s objection, the juvenile court ordered
Father to participate in a full drug and alcohol program for a
minimum of six months, random counseling, a 12-step program,
and individual counseling. The court also ordered the
Department to conduct unannounced visits to ensure compliance
with the case plan.
Father timely appealed.
5 Pursuant to the Department’s settlement with Mother,
the court dismissed count b-1, but sustained an amended count b-
2 as to Mother.
7
DISCUSSION
A. Appellate Jurisdiction
Father alone appeals the jurisdictional and dispositional
orders issued in this case. The failure of both parents to appeal a
finding of jurisdiction requires that we ensure appellate review is
appropriate.
Dependency jurisdiction under section 300 is over the child,
not the parents, as a result of the harm or risk of harm to the
child. (See, e.g., Kern County Dept. of Human Services v.
Superior Court (2010) 187 Cal.App.4th 302, 310.) Because the
juvenile court assumes jurisdiction over the child, not over the
parents, jurisdiction may exist based on the conduct of one parent
alone. (See § 302, subd. (a); In re John S. (2001) 88 Cal.App.4th
1140, 1143.) “For this reason, an appellate court may decline to
address the evidentiary support for any remaining jurisdictional
findings once a single finding has been found to be supported by
the evidence.” (In re I.A. (2011) 201 Cal.App.4th 1484, 1492.)
However, we may exercise our discretion and reach the
merits of a single parent’s challenge to any jurisdictional finding
when the finding serves as the basis for dispositional orders that
are also challenged on appeal. (See, e.g., In re Alexis E. (2009)
171 Cal.App.4th 438, 454.) Father contends this principle applies
in this case, and we agree. He also argues the outcome of this
appeal is the difference between a finding that he is an
“offending” parent versus a “non-offending” parent. Such a
distinction may have far reaching implications with respect to
future dependency proceedings in this case and Father’s parental
rights. We have exercised our discretion to reach the merits of a
single-parent appeal for this reason before, and we do so here.
(See, e.g., In re Quentin H. (2014) 230 Cal.App.4th 608, 613.)
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B. Substantial Evidence Supports Dependency
Jurisdiction over the Child
1. Applicable Law and Standard of Review
“Section 300, subdivision (b), allows a child to be adjudged
a dependent of the juvenile court when ‘[t]he child has suffered,
or there is a substantial risk that the child will suffer, serious
physical harm or illness, as a result of the failure or inability of
his or her parent or guardian to adequately supervise or protect
the child . . . or by the inability of the parent or guardian to
provide regular care for the child due to the parent’s or
guardian’s . . . substance abuse.’ ” (In re Christopher R. (2014)
225 Cal.App.4th 1210, 1215; see § 300, subd. (b)(1).)
“[T]here are three elements for jurisdiction under section
300, subdivision (b), namely, (1) neglectful conduct or substance
abuse by a parent in one of the specified forms, (2) causation, and
(3) serious physical harm to the child, or a substantial risk of
such harm.” (In re Rebecca C. (2014) 228 Cal.App.4th 720, 724-
725.)
In deciding whether there is a substantial risk of serious
physical harm, courts evaluate the risk that is present at the
time of the jurisdiction hearing. (In re Christopher R., supra, 225
Cal.App.4th at pp. 1215-1216.) “While evidence of past conduct
may be probative of current conditions, the question under
section 300 is whether circumstances at the time of the hearing
subject the minor to the defined risk of harm.” (In re Rocco M.
(1991) 1 Cal.App.4th 814, 824.) Thus, “[a] parent’s ‘ “[p]ast
conduct may be probative of current conditions” if there is reason
to believe that the conduct will continue.’ [Citation].” (In re
Christopher R., supra, 225 Cal.App.4th at p. 1216.)
9
We review the trial court’s jurisdictional findings for
substantial evidence. (In re J.N. (2010) 181 Cal.App.4th 1010,
1022.) Under this standard, “ ‘we must uphold the . . .
[jurisdictional] findings unless, after reviewing the entire record
and resolving all conflicts in favor of the respondent and drawing
all reasonable inferences in support of the judgment, we
determine there is no substantial evidence to support [them].’ ”
(Ibid.)
2. Discussion
Father argues that substantial evidence does not support
the juvenile court’s jurisdictional findings, namely, that Father
abused substances and that any drug use harmed, or risked
harm, to Ashley.
We disagree. It is true that dependency jurisdiction “must
be based on substance abuse; mere substance use is not sufficient
for jurisdiction. [Citation.] However, the law is not in agreement
on when substance use reaches the point of substance abuse.” (In
re J.A. (2020) 47 Cal.App.5th 1036, 1046, citing In re Drake M.
(2012) 211 Cal.App.4th 754, 764.) Despite this lack of agreement,
as we explain, the facts support the juvenile court’s assertion of
jurisdiction based on Father’s admitted methamphetamine use
and positive drug test.
After equivocating about his past and present drug use,
Father tested positive for methamphetamine, amphetamine, and
marijuana. During the jurisdictional hearing, the Department’s
counsel characterized Father’s drug test results as “extremely
high,” and the juvenile court characterized the amount of drugs
in his system as “substantial.” Father did not dispute these
comments about the quantity of drugs in his system. Only after
the results were received did he admit to using
10
methamphetamine at least once a month for two to three years,
in addition to weekly marijuana and alcohol use. This
longstanding and regular drug use provides substantial evidence
to support the trial court’s finding of substance abuse. (See In re
Christopher R., supra, 225 Cal.App.4th at p. 1218 [finding the
mother’s repeated use of cocaine, including while she was
pregnant, was indicative of substance abuse]; cf. In re L.C. (2019)
38 Cal.App.5th 646, 652 [evidence that the parent used
methamphetamine seven times during a period of 10 months was
insufficient to support allegations of substance abuse].) This
conclusion is further supported by Father’s criminal history,
which includes a 2008 misdemeanor conviction for possession of a
controlled substance, and a 2015 felony conviction for possession
for sale of marijuana. (See In re Christopher R., supra, at p. 1218
[noting that “recurrent substance-related legal problems” can be
indicative of abuse].)
Despite a finding of parental substance abuse, “it does not
always follow that such a finding means that the parent or
guardian at issue is unable to provide regular care resulting in a
substantial risk of physical harm to the child.” (In re Drake M.,
supra, 211 Cal.App.4th at p. 766.) A juvenile court also must find
that the parent’s substance abuse would cause a substantial risk
of physical harm to the children. (In re Rebecca C., supra, 228
Cal.App.4th at pp. 724-725.)
Additional evidence supports the juvenile court’s finding
that Father’s substance abuse gave rise to a substantial risk of
physical harm to Ashley. Father initially denied any use of
illegal substances, and then claimed he had stopped using
substances and had been clean for two years. When confronted
with his drug test results, he admitted he had regularly used
11
drugs for years. He claimed to appreciate the risks posed by his
substance abuse, readily agreeing to move out of the family home
while he “got help” for his substance abuse “problem.”
However, during the adjudication hearing just six weeks
later, Father asserted that he had “already resolved” his
substance abuse issues, even though he had not participated in
any drug treatment services and had tested positive for
marijuana three weeks prior to the hearing. Father argued that
he should not have to attend any kind of sobriety support
program, and should be allowed to continue using marijuana to
regulate his sleep and back pain. The juvenile court reasonably
concluded that Father’s initial denial of a drug abuse problem,
his unsubstantiated claim that the issues were “resolved,” and
his failure to acknowledge the need for treatment created a
substantial risk of physical harm to Ashley. (In re Gabriel K.
(2012) 203 Cal.App.4th 188, 197 [“One cannot correct a problem
one fails to acknowledge”]; see also In re R.R. (2010) 187
Cal.App.4th 1264, 1284 [finding a substantial risk of physical
harm by exposing the child to the parent’s substance abuse,
“ ‘thus impliedly approving such conduct and even encouraging
[the child] to believe that it is an appropriate or necessary means
of coping with life’s difficulties’ ”].)
Father argues that his drug use alone does not pose a risk
of harm to Ashley because she “has been well-cared-for in
Father’s custody for over 12 years—a long enough period of time
to be a good indicator of how things are likely to be in the future.”
We disagree, as the record shows that Ashley had not been in
Father’s continuous care for “over 12 years.” Although Father
won sole custody when Ashley was two years old, she has
continuously lived with Father in the paternal grandmother’s
12
home. Ashley herself stated that she was “used to [Father] being
in and out of [her] life because he used to go to jail and then come
out.” Additionally, Father admitted that he had used drugs
regularly for the past two to three years. Of those two to three
years, Father resided with Ashley for less than one year, as he
lived in Mexico from 2016 until October of 2019. In light of these
facts, Father appears to claim that his current drug use does not
pose a substantial risk to Ashley because her paternal
grandmother has taken good care of her for the majority of her
life, including during his extended absences, and because Ashley
has not yet been harmed by Father’s drug use. This argument is
disingenuous.
We therefore affirm the juvenile court’s finding of
jurisdiction under section 300, subdivision (b)(1), as to Father in
count b-3.
C. The Removal Order Was Proper
1. Applicable Law and Standard of Review
To remove a child from parental custody, the juvenile court
must find by clear and convincing evidence that one of five
grounds exists pursuant to section 361, subdivision (c). (In re
V.L. (2020) 54 Cal.App.5th 147, 154.) Of relevance here, “[o]ne
ground for removal is that there is a substantial risk of injury to
the child’s physical health, safety, protection or emotional well-
being if he or she were returned home, and there are no
reasonable means to protect the child.” (Ibid., citing § 361, subd.
(c)(1).)6
6Section 361, subdivision (c)(1) provides: “A dependent
child shall not be taken from the physical custody of his or her
parents . . . with whom the child resides at the time the petition
13
“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. [Citation.] ‘The 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.’ [Citation.]” (In re N.M. (2011) 197 Cal.App.4th 159, 169-
170.)
The clear and convincing evidence standard “ ‘requires a
finding of high probability. The evidence must be so clear as to
leave no substantial doubt.’ ” (In re V.L., supra, 54 Cal.App.5th
at p. 154.) “ ‘[W]hen reviewing a finding that a fact has been
proved by clear and convincing evidence, the question before the
appellate court is whether the record as a whole contains
substantial evidence from which a reasonable fact finder could
have found it highly probable that the fact was true. Consistent
with well-established principles governing review for sufficiency
of the evidence, in making this assessment the appellate court
must view the record in the light most favorable to the prevailing
party below and give due deference to how the trier of fact may
have evaluated the credibility of witnesses, resolved conflicts in
the evidence, and drawn reasonable inferences from the
was initiated, unless the juvenile court finds clear and convincing
evidence of any of the following circumstances . . . : (1) 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 the minor’s parent’s . . . physical
custody. . . .”
14
evidence.’ ” (Id. at p. 155 [applying the standard of review
articulated in conservatorship matters to a dependency
proceeding], quoting Conservatorship of O.B. (2020) 9 Cal.5th
989, 995-996.)
2. Discussion
Father raises two challenges to the removal order. First,
he argues that because his substance abuse was insufficient to
establish jurisdiction over Ashley, it was necessarily insufficient
to warrant removal. Having rejected Father’s jurisdictional
arguments, we find that he has not raised a cogent argument
about the sufficiency of the evidence of his substance abuse.
Moreover, removal is appropriate where, as here, a parent with a
longstanding drug abuse problem demonstrates resistance to
substance abuse treatment. (In re A.F. (2016) 3 Cal.App.5th 283,
293 [affirming removal order due to the mother’s failure to
acknowledge her longstanding drug abuse problem and “the risks
to which she was exposing the minor”]; see In re J.C. (2014) 233
Cal.App.4th 1, 6-7 [affirming removal notwithstanding the
father’s participation in treatment where his treatment provider
reported his participation was “ ‘sluggish,’ ” he missed two drug
tests, and had a long history of substance abuse].)]
Second, Father argues that both the Department and the
juvenile court failed to consider whether reasonable alternatives
to removal were available to protect Ashley from his substance
abuse.
Before ordering removal, the juvenile court must determine
if “reasonable efforts were made to prevent or to eliminate the
need for removal.” (§ 361, subd. (e).) To assist the juvenile court,
the Department must describe “the reasonable efforts [it] made to
prevent or eliminate removal.” (Cal. Rules of Court, rule
15
5.690(a)(1)(B)(i).) Although the juvenile court found the
Department made reasonable efforts, the Department concedes it
failed to report on the reasonable efforts it made to prevent
removal. Thus, the trial court’s ruling that the Department
complied with this obligation was erroneous. (In re Ashly F.
(2014) 225 Cal.App.4th 803, 809.)
However, this error alone does not warrant reversal. The
failure to make the required findings under section 361,
subdivision (e) is deemed harmless if “ ‘it is not reasonably
probable such finding, if made, would have been in favor of
continued parental custody.’ [Citations.]” (In re Jason L. (1990)
222 Cal.App.3d 1206, 1218.)
The Department’s obligation to make and report its
reasonable efforts to prevent removal, as well as the juvenile
court’s obligation to make findings about those efforts, serve as
“safeguards” against the “danger” that a department’s reports
“can become merely a hollow formula designed to achieve the
result the agency seeks,” preventing actual analysis of available
protective measures. (In re Ashly F., supra, 225 Cal.App.4th at
p. 810.) This danger is not present where, as here, substantial
evidence shows that means other than removal could not have
adequately protected the child.
After reviewing the evidence and arguments presented, the
juvenile court found that Father “was . . . unable to fully
appreciate the harm he could have caused by his own drug use
with his child.” This finding is supported by Father’s
inconsistent attitude regarding his drug use. Initially, he tried to
conceal his drug use from the Department. When confronted
with irrefutable evidence of recent drug use, Father admitted
that he had been using drugs regularly for years and expressed a
16
willingness to “get help” to avoid losing his daughter. Three
weeks later, Father tested negative for methamphetamine but
positive for marijuana. Three weeks after that, Father insisted to
the court that his drug use did not affect his ability to care for his
daughter and resisted any requirement to participate in drug
treatment programs.
This starkly contrasts with the attitude of the mother in
Ashly F., who expressed remorse for her abusive conduct and
promptly enrolled in a parenting class. (In re Ashly F., supra,
225 Cal.App.4th at p. 810.) This court determined that the
mother’s willingness to seek out and comply with parenting
services suggested that regular family maintenance services
could have adequately protected the child. (Ibid.) Here, Father
demonstrates no such willingness.
Additionally, the juvenile court in the present case
considered alternative means to protect Ashley from Father’s
substance abuse. At the disposition hearing, Father argued that
the paternal grandmother and relatives, who had only recently
learned of his drug use, could protect Ashley from any threat
posed by his presence in the home. The juvenile court rejected
this argument. The juvenile court noted that Father’s first drug
test revealed he had a blood alcohol level of .04 percent in the
middle of the day, even though he knew he was required to report
for testing, as well as “substantial” amounts of
methamphetamine and amphetamine. The juvenile court
reasonably concluded that this type of substance abuse probably
would be difficult to conceal from other adults in the family home,
raising a concern that the other family members would not be
sufficiently protective of Ashley. Accordingly, the juvenile court
17
reasonably rejected the proposed alternative of returning Father
to the house under familial supervision.
Under these circumstances, we find it improbable that the
juvenile court would have made a different decision on the
question of removal, even if it had made all the factual findings
required by section 361, subdivision (e). Therefore, the juvenile
court’s error was harmless. (In re Celine R. (2003) 31 Cal.4th 45,
60 [“We have interpreted [the state Constitution] as permitting
reversal [under the harmless error standard] only if the
reviewing court finds it reasonably probable the result would
have been more favorable to the appealing party but for the error.
[Citation.] We believe it appropriate to apply the same test in
dependency matters.”].)
For these reasons, we affirm the removal order.
DISPOSITION
The juvenile court’s November 6, 2020, jurisdictional and
dispositional orders are affirmed.
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
ROTHSCHILD, P. J. BENDIX, J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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