In re Mariah G. CA2/4 ( 2013 )

Filed 10/22/13 In re Mariah 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
B247161
In re MARIAH G., a Person Coming Under
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK97110)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
JAVIER G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Philip L.
Soto, Judge. Affirmed.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
________________________________
Javier G. (father) appeals from the trial court‟s order asserting jurisdiction over
Mariah G. based, in part, on its conclusion that father‟s use of marijuana placed the child
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at substantial risk of serious physical harm. (Welf. & Inst. Code § 300, subd. (b).) He
contends the evidence was insufficient to support the court‟s conclusion that his use of
marijuana endangered the child, and its order that he participate in drug treatment
programs and parenting courses. Respondent Department of Children and Family
Services (Department) argues the evidence supports the jurisdictional finding, and that
the trial court did not abuse its discretion. Finding the evidence sufficient to support
jurisdiction based on father‟s conduct, we affirm the court‟s order regarding the counts
alleged against him.
FACTUAL AND PROCEDURAL SUMMARY
Minor Mariah G. was born in November 2009. When her parents first met, father
Javier G. was 19 years old, and her mother was 18. Sometime after mother became
pregnant, the two began living together. They separated some two years later, but
reached an informal agreement that Mariah would live with her mother, and visit father
every other weekend.
On October 10, 2012, reports of substance use by both parents led to a Department
investigation of the family. Mother admitted using methamphetamine over the previous
two years. She obtained the drug from friends, and her use was so heavy that sometimes
she would remain under the influence for three consecutive days. After deciding to seek
treatment, mother agreed that her sister would look after Mariah while she admitted
herself to an inpatient rehabilitation program, which she did in late October 2012.
Meanwhile, in an interview with the Department, father admitted that he used
marijuana every other weekend when Mariah was not visiting, and denied using it while
she was in his care. On November 1, 2012, he tested positive for marijuana. He claimed
that he had an expired medical marijuana card, but that he was waiting for a replacement
California identification card in order to renew it. There is no evidence as to when the
1
All statutory references are to the Welfare and Institutions Code.
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card expired, and no evidence other than father‟s oral claim that he ever had a card.
Mariah remained with her aunt, and father agreed to a modified visitation plan with
supervision.
In December 2012, mother tested positive for methamphetamine at the
rehabilitation facility, and was terminated from the program. As a result, the Department
removed Mariah from her mother‟s custody, ordered formal placement with her aunt, and
filed a dependency petition pursuant to section 300, subdivision (b). In count b-1, the
Department alleged Mariah was at risk of suffering serious physical harm or illness as a
result of mother‟s history of substance abuse, and her current methamphetamine habit. In
count b-2, it alleged that father‟s history of substance abuse, and his current use of
marijuana, had the same effect. The Department cited father‟s November 2012 positive
test for marijuana. The court ordered monitored visitation for the parents, three times per
week, for three hours each, with reunification services.
In its jurisdiction and disposition report, the Department continued to focus on the
parents‟ substance use. When a dependency investigator interviewed mother, she
admitted to abusing methamphetamine, cocaine, and marijuana. She claimed father‟s use
of marijuana caused him to become violent, emotional, and mentally unstable, and that it
led to his refusal to work. Mother stated that father completed a 30-day rehabilitation
program only after she made him attend.
Father tested positive for marijuana in January 2013. When he arrived for a
meeting at the Department on January 22, 2013, the investigator noted a “strong odor of
marijuana permeat[ing] from [his] person.” Father said he used marijuana to help him
sleep and cope with depression. Once again, father said he had an expired medical
marijuana card, but this time he claimed it was because he did not have enough money to
renew it. Father admitted to occasional physical altercations with mother, but police
were never involved. Denying any drug abuse problems, he refused to enter a drug
treatment program.
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At the January 2013 jurisdictional hearing, father did not seek custody of Mariah.
Instead, he sought only that Mariah‟s best interests be fulfilled, and that she remain with
her aunt. The court focused on father‟s marijuana use, and noted legal ways to treat his
depression, including therapy and prescription drugs. Because Mariah was a “very young
child,” the court found father‟s marijuana use presented “an impediment to being a good
parent and role model to [Mariah] and to keep [her] safe.”
The court sustained the jurisdictional allegations against the parents, removed
Mariah from parental custody, declared her a dependent, placed her with her aunt, and
ordered both monitored visits and reunification services for her parents. It also ordered
father to participate in a drug rehabilitation program, submit to random drug testing,
participate in individual counseling, and attend parenting classes. Father also was
directed to participate in counseling in order to address his mental health, anger
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management, and domestic violence issues. Father filed a timely notice of appeal.
DISCUSSION
I
Father argues we should reverse the order as to him, even though the unchallenged
order as to mother will ensure that jurisdiction over his daughter remains. He claims he
has been and will be prejudiced by the court‟s finding of jurisdiction based on his alleged
conduct. We agree the jurisdictional finding is reviewable.
A reviewing court exercises its discretion to reach the merits of a challenge to a
jurisdictional finding when it could be prejudicial to the appellant, potentially impact the
current or future dependency proceedings, or pose consequences for the appellant other
than jurisdiction. (In re Drake M. (2012) 211 Cal. App. 4th 754, 762-763.) In In re Drake
M., a father challenged only the jurisdictional findings against himself, and not those
found against the mother. (Id. at p. 757.) The court reasoned that the “outcome of this
appeal is the difference between father‟s being an „offending‟ parent versus a „non-
offending‟ parent.” (Id. at p. 763.) Such a distinction could have “far reaching
2
Mother is not a party in this appeal.
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implications with respect to future dependency proceedings in this case and father‟s
parental rights.” (Ibid.) Even though jurisdiction over the child would remain in place
due to the unchallenged findings against the mother, the court reviewed father‟s appeal
on the merits. (Ibid.)
Father may be prejudiced by the trial court‟s findings in future dependency
actions, and in related proceedings beyond this jurisdictional order. As in In re Drake
M., the court‟s findings regarding father‟s substance use and its efforts to classify him as
an offending parent may impact future dependency actions regarding Mariah. (In re
Drake M., supra, 211 Cal.App.4th at p. 763.) The court‟s ruling that father would be
unable to regain custody of her unless he completed the drug rehabilitation program
demonstrates how its orders impact father beyond the jurisdictional finding. Thus, as in
In re Drake M., even though dependency jurisdiction over Mariah would remain if
father‟s challenge were successful, we review his appeal on the merits. (Ibid.)
II
Father challenges the court‟s finding of jurisdiction over Mariah. He contends the
evidence was insufficient to support the trial court‟s conclusion that his alleged conduct
caused Mariah to suffer, or that it subjects her to a substantial risk of suffering serious
physical illness or harm. We disagree.
Where a parent challenges the juvenile court‟s jurisdictional findings, we consider
the entire record to determine whether substantial evidence supports the court‟s order.
(In re Drake M., supra, 211 Cal.App.4th at p. 763.) “[W]e resolve all conflicts and make
all reasonable inferences from the evidence to uphold the court‟s orders, if possible.
[Citation.] „However, substantial evidence is not synonymous with any evidence.
[Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on
appeal. [Citation.] Furthermore, “[w]hile substantial evidence may consist of inferences,
such inferences must be „a product of logic and reason‟ and „must rest on the evidence‟
[citation]; inferences that are the result of mere speculation or conjecture cannot support a
finding [citations].” [Citation.] “The ultimate test is whether it is reasonable for a trier of
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fact to make the ruling in question in light of the whole record.” [Citation.]‟” (In re
David M. (2005) 134 Cal. App. 4th 822, 828, italics omitted.)
Section 300, subdivision (b) states the circumstances under which a court can
exercise jurisdiction over a minor. In relevant part, it provides that jurisdiction is
appropriate when 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 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 mental illness, developmental disability, or substance abuse.” (§ 300,
subd. (b).) For the juvenile court to assert jurisdiction, it must find by a preponderance of
the evidence that Mariah suffered serious physical harm or illness, or is at a substantial
risk of suffering such harm due to father‟s failure or inability to adequately protect or
supervise her, or because of his inability to provide regular care due to substance abuse.
(See In re David M., supra, 134 Cal.App.4th at p. 829.)
Father argues the evidence was insufficient to support the court‟s finding of
jurisdiction over Mariah, based on his unlicensed use of marijuana, as alleged in count b-
2. He claims the court reviewed no evidence indicating that his use of marijuana harmed
Mariah or placed her at risk of harm. In jurisdictional proceedings, courts examine
whether children are subject to two distinct types of physical harm: (1) a specific hazard
in the child‟s life, such as an abusive adult, and (2) the absence of adequate supervision
or care that poses an inherent risk to the child‟s physical health and safety, where the
child is of tender years. (In re Rocco M. (1991) 1 Cal. App. 4th 814, 824.) A judicial
finding that a parent is a substance abuser serves as prima facie evidence “of the inability
of a parent or guardian to provide regular care resulting in a substantial risk of physical
harm.” Father does not appear to be a substance “abuser” as that term is defined in the
American Psychiatric Association‟s Diagnostic and Statistical Manual of Mental
Disorders (4th ed. 2000) page 199, adopting that criteria for purpose of section 300,
subdivision (b). (In re Drake M., supra, 211 Cal.App.4th at p. 767; see also id. at p. 766.)
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We agree that jurisdiction based only on the mere use of marijuana or other drugs
by a parent “without any evidence that such usage has caused serious physical harm or
illness or places a child at substantial risk of incurring serious physical harm or illness is
unwarranted and will be reversed.” (In re Drake M., supra, 211 Cal.App.4th at p. 769,
italics omitted; In re Alexis E. (2009) 171 Cal. App. 4th 438, 453 [“[U]se of medical
marijuana, without more, cannot support a jurisdiction finding that such use brings the
minors within the jurisdiction of the dependency court.”]; In re Destiny S. (2012) 210
Cal. App. 4th 999, 1003, italics omitted [“undisputed” finding that a parent‟s use of
marijuana or hard drugs, “„without more,‟ does not bring a minor within the jurisdiction
of the dependency court”].) Courts consider a variety of factors when determining
whether a parent‟s substance use endangers the child. In In re Alexis E., the court found a
father‟s legal use of medicinal marijuana placed his children at a risk of harm where he
smoked in their presence, and became angry and engaged in corporal punishment while
under the influence. (In re Alexis E., at p. 453.)
Nevertheless, father‟s conduct indicates a risk of harm to Mariah that is sufficient
to satisfy the juvenile court‟s finding by a preponderance of the evidence. Father
admitted to regular marijuana use. During the three-month period of the Department‟s
investigation of the family, father tested positive for marijuana twice. He showed up for
a Department meeting with a strong odor of marijuana permeating from his person. More
important, mother stated that he became angry and violent when under the influence. The
evidence of his continued marijuana use while the Department investigated Mariah‟s care
indicates, at a minimum, that these symptoms are likely to reoccur. The fact that father
appeared for an important meeting with a Department investigator smelling of marijuana
supports a reasonable inference that he would exercise similarly poor judgment when
Mariah is in his care. We find the evidence before the juvenile court was sufficient for it
to determine that father‟s use of marijuana posed a risk of serious physical harm, and
conclude the Department satisfied its burden of demonstrating by a preponderance of the
evidence that father‟s marijuana use created a risk of harm to Mariah. (In re David M.,
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supra, 134 Cal.App.4th at p. 832 [finding the agency failed to meet its burden of
demonstrating a risk of harm to the child].)
III
Father argues the trial court‟s order based on the jurisdictional finding against him
amounts to an abuse of discretion. He contends that because there was insufficient
evidence to support the court‟s jurisdictional finding against him, the court‟s orders for
drug rehabilitation and parenting classes should be reversed. Since we find the evidence
sufficient to support the court‟s order, we disagree.
During jurisdictional proceedings, a juvenile court “must order child welfare
services for the minor and the minor‟s parents to facilitate reunification of the family.”
(In re Christopher H. (1996) 50 Cal. App. 4th 1001, 1006; see § 361.5, subd. (a).) In
doing so, the “court has broad discretion to determine what would best serve and protect
the child‟s interest and to fashion a dispositional order in accord with this discretion.” (In
re Christopher H., supra, at p. 1006.) But the court‟s discretion is not without limits.
“The program in which a parent or guardian is required to participate shall be designed to
eliminate those conditions that led to the court‟s finding that the child is a person
described by Section 300.” (§ 362, subd. (d).) In other words, the court‟s orders must be
designed to remedy the circumstances that led to its finding of jurisdiction. “We cannot
reverse the court‟s determination in this regard absent a clear abuse of discretion.” (In re
Christopher H., at p. 1006.)
Given the appropriate finding of jurisdiction based on father‟s substance use,
ordering participation in a drug rehabilitation program was a proper measure designed to
remedy the problem and enable family reunification. Accordingly, we find the trial court
did not abuse its discretion.
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DISPOSITION
The order based on father‟s conduct, as alleged in count b-2, is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.
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