In re Baby Boy E. CA2/5 ( 2023 )

Filed 1/26/23 In re Baby Boy E. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re Baby Boy E., a Person B313350
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No.
18CCJP05378B)
LOS ANGELES COUNTY ORDER MODIFYING
DEPARTMENT OF OPINION
CHILDREN AND FAMILY
SERVICES, [No change in judgment]
Plaintiff and Respondent,
v.
S.E.,
Defendant and Appellant.
BY THE COURT:
It is ordered that the opinion filed herein on January
13, 2023, is modified as follows:
On page 15, changing the Disposition to read:
“The jurisdiction order is affirmed. The removal order is
reversed, and the matter is remanded to the juvenile court to
enter a new disposition order giving custody of the child to
mother—unless the juvenile court makes a finding on the record,
based on evidence not before this court in this appeal, that
changed circumstances render the issue moot or would justify a
detriment finding by clear and convincing evidence.”
Respondent’s alternative request for rehearing is denied.
There is no change in judgment.
____________________________________________________________
BAKER, Acting P. J. MOOR, J. KIM, J.
2
Filed 1/13/23 In re Baby Boy E. CA2/5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re Baby Boy E., a Person B313350
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No.
18CCJP05378B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
S.E.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Linda Sun, Judge. Affirmed in part and reversed in
part.
Roni Keller, under appointment by the Court of Appeal, for
Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, Navid Nakhjavani, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_____________________________________
I. INTRODUCTION
S.E., mother of now nearly two-year-old Baby Boy E. (the
child),1 appeals from the juvenile court’s jurisdiction and
disposition orders. We affirm the jurisdiction order and reverse
the removal order.
II. BACKGROUND
On February 25, 2021, the Department filed a section 300
petition that alleged, as later sustained under subdivision (b), the
child tested positive at birth for marijuana; mother had a history
of substance abuse including methamphetamine, heroin, and
marijuana; mother currently was abusing marijuana and had
abused marijuana during her pregnancy with the child; and
mother had abused marijuana during her pregnancy with the
1 In its Welfare and Institutions Code section 300 petition
(all further statutory references are to the Welfare and
Institutions Code), the Los Angeles County Department of
Children and Family Services (Department) identified the child
as “Baby Boy E.” The Department subsequently identified the
child as “M.E.”
2
child’s then two year old half-sibling S.E. who was a juvenile
court dependent and receiving permanent placement services due
to mother’s substance abuse.2
In its March 2, 2021, Detention Report, the Department
reported it received a referral stating the child had tested
positive at birth for THC.3 According to the referral, mother
admitted smoking THC for the prior two years, but stated she
stopped when she learned she was three months pregnant. The
referral stated there was poor prenatal care, but mother had a
stable living environment and family support, and mother was
appropriately bonding with the child. According to mother, the
child’s father4 was not involved, and she had supplies for the
child and knew how to enroll in “WIC.”
On three occasions in January 2021, a social worker
attempted to contact mother at the address reported in the
referral and was told by the residents that mother did not live
there. On the third attempt, on January 27, 2021, the social
worker called mother’s reported telephone number while
standing outside mother’s referral address. The person who
answered identified herself as mother. The social worker asked
mother to provide her address. Mother provided the referral
2 On January 30, 2020, the juvenile court terminated family
reunification services for mother as to half-sibling S.E. The court
ordered adoption as the permanent plan. As of March 26, 2021,
the section 366.26 hearing was set for May 20, 2021.
3 THC (tetrahydrocannabinol) is the active ingredient in
marijuana. (In re I.G. (2014) 226 Cal.App.4th 380, 383.)
4 The juvenile court later found G.S., whose whereabouts
were unknown, to be the child’s alleged father.
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address. The social worker informed mother that she was at that
address and the residents told her mother did not live there.
Mother ended the call and did not answer either of the social
worker’s two subsequent calls.
On February 11, 2021, the social worker spoke with
maternal great-grandmother M.T. Maternal great-grandmother
did not know mother’s or the child’s whereabouts. Maternal
great-grandmother had custody of and was in the process of
adopting half-sibling S.E. and was willing to take custody of the
child.
Also on February 11, 2021, the social worker spoke with a
social worker at California Hospital Medical Center. The
hospital social worker stated that mother said she stopped
consuming marijuana when she was three months pregnant with
the child. Asked about the child’s THC levels, the hospital social
worker explained that the test only registered positive or
negative and did not give levels. Mother was not drug tested, but
“was positive for fentanyl due to labor.”
In a series of e-mails on February 18, 2021, mother
responded to a Department email that stated it had
unsuccessfully attempted to contact her and requested she
contact the Department. In her e-mails, mother asked about the
nature of the Department’s inquiry. Mother did not respond to
the Department’s request that she make herself available to the
Department.
On February 24, 2021, the social worker received
information that a family member informed maternal great-
grandmother that mother might be in Chicago.
At the March 2, 2021, detention hearing, the juvenile court
found a prima facie case for detaining the child and ordered the
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child placed with the Department. The court ordered the
Department to file a missing persons report to locate mother and
the child who were at large.
On March 15, 2021, the juvenile court issued a protective
custody warrant for the child. On April 8, 2021, the court issued
an arrest warrant for mother.
In its Jurisdiction/Disposition Report filed on
March 26, 2021, the Department stated that the child remained
at large with mother. According to a dependency investigator
who contacted maternal grandfather S.E. on March 24, 2021,
mother had been in Chicago because maternal grandmother C.J.
told mother they were moving to Chicago and there was nothing
mother could do about it. Maternal grandmother was on drugs
and she and mother ended up homeless.
Maternal grandfather invited mother to live with him in
Nevada. He told the dependency investigator that mother was in
Nevada, but not living with him because she was concerned the
Department would locate her and detain the child.
The dependency investigator advised maternal grandfather
of the warrants for the child and mother and stated it was in
mother’s best interest to contact the Department. Further,
mother’s contact should be by phone and not by e-mail.
Later that day, mother called the dependency investigator.
She stated she was aware the child tested positive for THC at
birth. Mother had been prescribed medical marijuana because of
pain she experienced while pregnant but stopped using
marijuana when she was five months pregnant and no longer in
pain.
Mother declined to provide her address, but stated she was
living in Las Vegas. The dependency investigator advised mother
5
of the warrants for her and the child and explained the warrants
could not be recalled until the Department saw the child in
person. Mother responded that she would meet with the
Department in Los Angeles on March 29 or 30, 2021.
In a Last Minute Information for the Court filed on
April 16, 2021, the Department reported that mother informed it
on April 13, 2021, that she and the child were living in Las Vegas
with paternal great-grandmother H.N. The Department
contacted Las Vegas Child Protective Services and provided it
with copies of the protective custody warrant for the child and
arrest warrant for mother. Las Vegas Child Protective Services
detained the child and arranged for the Department to take him
into custody.
At a detention hearing on April 19, 2021, the juvenile court
ordered the child detained from mother, who continued to reside
in Las Vegas, and alleged father. It also ordered the Department
to assess the possibility of resolving the matter with informal
supervision—i.e., without adjudicating the child a dependent of
the court—pursuant section 301 or 360, subdivision (b); to
provide mother with visitation; to work with Nevada authorities
to assess mother’s home; and to have mother drug test.
In a Last Minute Information for the Court filed on
April 20, 2021, the Department reported the child was placed
with maternal great-grandmother.
In a Last Minute Information for the Court filed on
May 12, 2021, the Department reported that informal supervision
was not appropriate because mother failed to surrender the child
or inform the Department of her whereabouts since her initial
contact with the Department on January 27, 2021. Thereafter,
mother evaded the Department even though it informed her
6
multiple times that it needed to assess the child’s health and
safety in person and informed her of the protective custody
warrant and arrest warrant. The Department further reported
that mother failed to comply with the telephone visitation
schedule for speaking to the child and stated she would continue
to call whenever she wanted. The Department concluded that
mother was a flight risk and would not comply with the
Department if the court did not take jurisdiction over the child.
In a Last Minute Information for the Court filed on
May 26, 2021, the Department reiterated its concerns about
mother and the child’s safety. On May 25, 2021, the Department
asked mother for updates on her programs and testing. Mother
reported that she took a drug/alcohol test in Las Vegas and
provided the results to her attorney. She did not provide the
results to the Department as requested. Mother did not
communicate directly with the Department and continued to be
evasive. The Department was unable to assess mother’s sobriety
and ability to care for the child because it was unable to speak
with her in person—she communicated with the Department
primarily through e-mail and not by telephone.
At the May 26, 2021, jurisdiction/disposition hearing,
mother testified she knew the child tested positive at birth for
marijuana. She admitted she smoked marijuana three to four
times a week while pregnant with the child, but stated she
stopped when she learned she was pregnant at three months.
She denied ever having taken any other drugs such as heroin or
methamphetamine.
After the child’s birth, mother resumed smoking marijuana
three to four times a week for her diagnosed depression and
diagnosed postpartum depression—she was prescribed marijuana
7
in 2017 for depression. Maternal grandfather, maternal great-
grandmother, and maternal great-aunt T.W. were responsible for
caring for the child when mother used marijuana. Mother’s
marijuana use never negatively affected her ability to function
throughout the day. At the time of the hearing, mother was no
longer smoking marijuana, having stopped on April 14, 2021.
Mother had learned about the Department’s “involvement”
with the child from maternal grandmother around early
February 2021. Mother had “reached out” to a social worker,
contacting her by e-mail and then speaking with her on the
telephone. Mother gave the social worker her address and
telephone number and had been in regular contact with the social
worker since then. Mother did not recall having a telephone
conversation with a social worker on January 27, 2021. Around
mid-January 2021, she last had access to the e-mail address the
Department purportedly used to communicate with her in
February 2021. Maternal grandmother had access to that e-mail
address and mother’s phone.
The referral address for mother was her address when she
first moved to Los Angeles. When the child was born, mother
was not living there, and she did not give that address to anyone
at the hospital or to the social worker. She had, however, given
that address to the social worker in half-sibling S.E.’s case.
Mother had physical custody of the child for about three
months after he was born. During that time, the child did not
suffer any injuries and was never ill. Mother had “scheduled”
medical insurance for the child and had scheduled a doctor’s
appointment for him, but he was removed from mother before the
appointment.
8
The juvenile court sustained the section 300 petition as set
forth above, declared the child a dependent of the court, and
removed him from mother’s custody. The court found mother’s
testimony about her drug use “not entirely credible”—she
testified that she stopped smoking marijuana when she was three
months pregnant but also told a social worker she stopped when
she was five months pregnant. The court found mother’s
testimony about maternal grandmother’s access to mother’s
phone and e-mail account “questionable and not entirely
believable.”
The juvenile court also noted that mother had failed to
drug test and had a criminal history of battery which pointed to
her failure to follow court orders. “[M]ost importantly, her prior
welfare history and her hiding the child from the Department all
preponderate[d] to the conclusion that she ha[d] an unsettled
substance abuse problem . . . .”
The juvenile court ordered monitored visitation for mother
a minimum of four times a week for 30 minutes. If mother
visited California, the court authorized in person visits for three
hours. The court further ordered six random or on demand drug
tests. If mother missed a test or tested positive, then mother was
to participate in a full drug rehabilitation program with random
testing. Finally, the court ordered mother to participate in a
developmentally appropriate parenting course and individual
counseling to address case issues.
9
III. DISCUSSION
A. Jurisdiction
Mother contends that insufficient evidence supports the
juvenile court’s jurisdiction order. We disagree.
“‘In reviewing the jurisdictional findings and the
disposition, we look to see if substantial evidence, contradicted or
uncontradicted, supports them. [Citation.] 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 R.T. (2017)
3 Cal.5th 622, 633.)
For a child to be found a dependent of the juvenile court
under section 300, subdivision (b)(1), the court must find: “The
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 the child’s 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 . . . substance abuse.”
Drug use alone is insufficient to show that a child is at a
substantial risk of serious physical harm or illness. (In re J.A.
(2020) 47 Cal.App.5th 1036, 1046; In re Drake M. (2012) 211
Cal.App.4th 754, 764; In re Destiny S. (2012) 210 Cal.App.4th
999, 1003; In re Alexis E. (2009) 171 Cal.App.4th 438, 453.) A
parent’s substance use may support a finding of jurisdiction if
10
such use satisfies the statutory standard of a substantial risk of
serious physical harm. (§ 300, subd. (b)(1)(D).)
Substantial evidence supports the juvenile court’s
jurisdiction finding. Mother abused marijuana during her
pregnancy with the child’s half-sibling S.E. resulting in S.E.
being declared a juvenile court dependent. Mother’s substance
abuse, which she has not since addressed, was sufficiently
significant that S.E. was receiving permanent placement
services.
Mother received poor prenatal care when pregnant with the
child, who was less than five months old at the time of the
jurisdiction hearing. And, after the child was born, mother took
steps to evade the Department, thus thwarting its efforts to
assess the child’s health and safety in person. Mother gave the
Department a false referral address, reaffirming that false
address in a phone call as a social worker stood outside mother’s
claimed residence. Despite repeated requests, mother did not
make herself available to the Department and moved outside the
Department’s jurisdiction, first to Chicago and then to Nevada.
According to maternal grandfather, when mother moved to
Nevada, she did not live with him because she was concerned the
Department would locate her and detain the child. When mother
contacted the Department from Nevada, she declined to provide
her address. Informed of the warrants for her and the child,
mother stated she would meet with the Department at the end of
March 2021 but did not appear for the meeting.
Other evidence supported the juvenile court’s conclusion
that mother had an unsettled substance abuse problem. Mother
admitted smoking marijuana during the two-year period prior to
her pregnancy with the child, claiming she stopped when she
11
learned she was pregnant, yet the child tested positive for THC
at birth. Mother gave conflicting reports of when she stopped
smoking marijuana during her pregnancy with the child,
claiming at various times that she stopped at month three and at
month five. Mother admitted resuming her marijuana use after
the child’s birth even though her prior marijuana abuse resulted
in the dependency case for the child’s half-sibling S.E. and the
current dependency case for the child.
B. Disposition
Mother contends that, even if the facts supported an
assertion of jurisdiction over the child, there was insufficient
evidence to support the juvenile court’s disposition orders
removing the child from her physical custody, the order for
monitored visitation, and the failure to order informal
supervision. The court erred in ordering the child removed from
mother’s custody; but it did not abuse its discretion in failing to
order informal supervision.5
1. Removal
“‘“In dependency proceedings[,] the burden of proof is
substantially greater at the dispositional phase than it is at the
jurisdictional phase if the minor is to be removed from his or her
home”’ or the physical custody of a parent. [Citation.] The
applicable statute, section 361, subdivision (c), ‘“is clear and
5 Because we hold the juvenile court erred in removing the
child from mother’s custody, we do not reach mother’s contention
concerning the visitation order.
12
specific: Even though children may be dependents of the juvenile
court, they shall not be removed . . . unless there is clear and
convincing evidence of a substantial danger to the child’s physical
health, safety, protection, or physical or emotional well-being and
there are no ‘reasonable means’ by which the child can be
protected without removal.”’ [Citations.] [¶] . . . [¶]
“‘On appeal from a dispositional order removing a child
from a parent we apply the substantial evidence standard of
review, 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] Ashly F. [(2014)] 225 Cal.App.4th [803,] 809;
see Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005 . . . [‘when
presented with a challenge to the sufficiency of the evidence
associated with a finding requiring clear and convincing evidence,
the court must determine whether the record, viewed as a whole,
contains substantial evidence from which a reasonable trier of
fact could have made the finding of high probability demanded by
this standard of proof’].)” (In re I.R. (2021) 61 Cal.App.5th 510,
520.)
Although substantial evidence supports the juvenile court’s
jurisdiction order, substantial evidence does not support its
removal order. That is, there is not clear and convincing evidence
that the child would be in substantial danger if allowed to remain
in mother’s physical custody. (§ 361, subd. (c)(1); In re I.R.,
supra, 61 Cal.App.5th at p. 520.) Instead, the evidence shows
mother’s relatives—maternal grandfather, maternal great-
grandmother, and maternal great-aunt T.W.—assisted mother in
caring for the child and the child had not suffered any injuries
and was not ill in the months after birth and prior to the
disposition hearing. Also, mother had “scheduled” medical
13
insurance for the child and had scheduled a doctor’s appointment
for him (which he did not attend because he was removed from
mother before the appointment).
2. Informal Supervision
Section 360, subdivision (b) provides: “If the court finds
that the child is a person described by [s]ection 300, it may,
without adjudicating the child a dependent child of the court,
order that services be provided to keep the family together and
place the child and the child’s parent or guardian under the
supervision of the social worker for a time period consistent with
[s]ection 301.” A court may order informal supervision if the
child is placed in the home, and the family is cooperative and
agrees to informal services without court supervision. (In re
Adam D. (2010) 183 Cal.App.4th 1250, 1259.) “‘If the court
agrees to or orders a program of informal supervision, it does not
dismiss the dependency petition or otherwise set it aside. The
true finding of jurisdiction remains. It is only the dispositional
alternative of declaring the child a dependent that is not made.’”
(Id. at p. 1260.) The juvenile court’s denial of a request for
informal supervision is reviewed for an abuse of discretion. (In re
N.M. (2011) 197 Cal.App.4th 159, 171.)
The juvenile court did not abuse its discretion in failing to
order informal supervision. Mother’s evasion from contact with
the Department demonstrates her unsuitability for informal
supervision.
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IV. DISPOSITION
The jurisdiction order is affirmed. The removal order is
reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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