In re Jimmy J. CA2/7 ( 2014 )

Filed 6/16/14 In re Jimmy J. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN
In re JIMMY J., a Person Coming Under B251261
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK74739)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
Q.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Annabelle
Cortez, Judge. Affirmed.
David A. Hamilton, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and
Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
_____________
Jimmy J. was born in April 2013 with a positive toxicology screen for marijuana.
His mother, Q.M., also tested positive for marijuana. Jimmy was detained from Q.M. at
birth and later removed from her custody after the juvenile court sustained a petition
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under Welfare and Institutions section 300, subdivision (b), alleging Q.M.’s history of
marijuana abuse, which resulted in the termination of her parental rights over an older
child several months earlier, and her continued use of marijuana, even while pregnant
with Jimmy, rendered her incapable of caring for Jimmy and endangered Jimmy’s safety
and well-being. Q.M. contends the evidence is insufficient to support the court’s
jurisdiction finding and disposition order. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Petition
On April 26, 2013 the Los Angeles County Department of Children and Family
Services (Department) filed a section 300 petition alleging Jimmy was born suffering
from a detrimental condition identified as “a positive toxicology screen for marijuana.”
Q.M. also tested positive for marijuana at the same time, and the Department alleged
Q.M. used marijuana while she was pregnant. The petition also alleged Q.M.’s parental
2 3
rights over her older (preschool-age) daughter, Emily, had been terminated in 2012
1 Statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
2 The spelling of Emily’s name varies throughout the record. We use the common
spelling for consistency and clarity.
3 Q.M. gave birth to Emily in May 2008 when she was only 15 years old. In
September 2008 the Department initiated dependency proceedings on Emily’s behalf due
to domestic violence between Q.M. and her boyfriend and Q.M.’s inability to care for
Emily as a result of her marijuana use. In November 2009 Q.M. herself, along with her
younger siblings, became the subject of dependency proceedings due to severe domestic
violence and sexual abuse in their family home. Jurisdiction over Q.M. was terminated
in June 2012 when she was 19 years old. Q.M.’s parental rights over Emily were
terminated in July 2012.
2
after Q.M. had failed to reunify with her due, in part, to Q.M.’s continued abuse of
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marijuana.
2. The Jurisdiction and Disposition Hearing
The Department’s May 29, 2013 report prepared for the jurisdiction hearing
described Q.M.’s history of marijuana use and her varying explanations for her and
Jimmy’s positive toxicology tests: Initially Q.M. told hospital admissions staff she had
smoked marijuana during her pregnancy. She later told her nurse and social workers she
drank a tea prepared for her by a friend’s mother one to two weeks before Jimmy was
born because she was feeling ill. She did not realize it at the time, but now believes the
tea contained marijuana. She also stated that about one week before Jimmy was born she
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was at a friend’s “4/20” party where others were smoking marijuana. Although she did
not smoke marijuana at the party, she thought the positive test could have been the result
of her inhaling second-hand smoke. Q.M. denied any history of marijuana abuse. She
acknowledged trying marijuana for the first time when Emily was four months old, about
the time of the dependency proceedings were initiated in that case, but Q.M. did not like
marijuana and claimed not to have used it since.
The Department reported that, between the time of Jimmy’s detention on April 26,
2013 and the filing of its May 29, 2013 jurisdiction report, Q.M. had enrolled in a
parenting program and in an outpatient drug treatment program and had tested negative
for drugs on May 7, 2013 and May 17, 2013. The jurisdiction hearing was continued for
a contest, and the court ordered the Department to provide a supplemental report. In a
last-minute information for the court prepared on July 26, 2013, the Department reported
Q.M. had submitted to weekly random drug testing from May 24, 2013 through July 22,
4 The petition also alleged Jimmy’s father, Luis J., had a history of abusing
marijuana. That allegation was dismissed at the jurisdiction hearing for insufficient
evidence.
5 Citing Wikipedia, the jurisdiction report explained 4/20 is a code-term used
“primarily in North America that refers to the consumption of cannabis and by extension,
as a way to identify oneself with cannabis subculture.”
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2013. She had 10 negative drug tests and missed three tests. However, Q.M. quit the
substance abuse program citing conflicts with her work schedule and the cost of the
program following the termination of her Medi-Cal benefits. Although the Department
found a no-cost outpatient substance abuse program for Q.M. to attend, it was located in
Los Angeles; and Q.M. told social workers it was too difficult to attend the program and
make it back to her job in Irwindale.
In another last-minute information for the court in connection with the jurisdiction
hearing, which had been continued to August 28, 2013, the Department reported Q.M.
had enrolled in a six-month substance abuse program in Covina on July 30, 2013
consisting of 24 individual counseling sessions, 24 alcohol and drug education group
sessions, 48 Alcoholics Anonymous meetings and random drug testing. Q.M. had missed
the first two individual sessions because, she claimed, she was confused and unaware of
the program requirements. She attended three individual sessions, four group sessions
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and, according to the last-minute information, had submitted to random drug testing.
At the hearing, continued to August 29, 2013 due to court congestion, Q.M.
contested jurisdiction, submitting the issue on the Department’s reports. She argued the
petition should be dismissed because the evidence was insufficient Jimmy was born with
a detrimental condition: There was no evidence, she argued, that Jimmy had suffered any
ill effects as a result of having marijuana in his system. Moreover, there was no evidence
she was unable to care for him. The court sustained the petition. In a lengthy
explanation for its decision, the court stated, “The court notes that — acknowledges that
past conduct alone does not create a risk of harm to the child. However, the court is not
relying upon past conduct alone with respect to making a determination there is risk of
harm to Jimmy. The mother does have a prior history with the Department with Emily
[S.][;] on 9-24-2008 there w[ere] allegations of mother using marijuana and that case
ended up with the mother’s [family reunification services] terminated on 5-20-10 and the
child being placed for adoption on 7-24-2012. So there was—there is a history of the
6 The record does not contain information as to the results of any August drug tests.
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mother using marijuana. With respect to the current[] risk . . . we see ourselves a year
later with the parental rights terminated and Jimmy . . . born with a positive toxicology
screen for marijuana. The court also finds that this issue remains unaddressed with the
mother . . . and it is still a current issue for Jimmy. Mother has missed tests and has
stopped attending programs according to the report and has missed sessions [in her drug
treatment program]. Mother’s explanation for the positive toxicology according to the
report on page 11 indicates that the mother changed her story about the drug use many
times . . . . When you look at the totality of the facts, there is a preponderance of
evidence that the issues remain unresolved for the mother.”
The court declared Jimmy a dependent child of the court, found there was no
reasonable means to protect him other than removing him from Q.M.’s custody and
placed him with his father under the supervision of the Department. The court set a
section 364 review hearing for February 27, 2014, which was continued to May 29, 2014.
Q.M. filed a timely appeal.
DISCUSSION
1. Standard of Review
“‘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.” [Citations.]
“We do not reweigh the evidence or exercise independent judgment, but merely
determine if there are sufficient facts to support the findings of the trial court.
[Citations.] ‘“[T]he [appellate] court must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial evidence
. . . such that a reasonable trier of fact could [make the ruling in question].”’”
[Citation.]’” (In re I.J. (2013) 56 Cal.4th 766, 773; accord, In re Angelia P. (1981)
28 Cal.3d 908, 924; In re David M. (2005) 134 Cal.App.4th 822, 828.)
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2. The Court’s Jurisdiction Finding Is Supported by Substantial Evidence
Section 300, subdivision (b), authorizes the juvenile court to assume jurisdiction
over a child 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 . . . to adequately supervise or protect the child . . . or by the inability of the parent
. . . to provide regular care for the child due to the parent’s . . . mental illness,
developmental disability or substance abuse.” Although section 300 generally requires
proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing
(In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396; In re Rocco M. (1991)
1 Cal.App.4th 814, 824 (Rocco M.), 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.) The court may consider past events in
deciding whether a child presently needs the court’s protection. (Ibid.) A parent’s
“‘“[p]ast conduct may be probative of current conditions” if there is reason to believe that
the conduct will continue.’” (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216
(Christopher R.); accord, In re S.O. (2002) 103 Cal.App.4th 453, 461.)
Q.M. contends the evidence is insufficient that Jimmy suffered from any
detrimental condition or was at a substantial risk of harm. Citing Penal Code section
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11165.13, a provision of the Child Abuse and Neglect Reporting Act (Pen. Code,
§ 11164 et seq.), Q.M. argues a newborn’s positive toxicology screen at the time of
delivery, by itself, is insufficient evidence of abuse or neglect and, by logical extension,
an insufficient basis for the assertion of dependency jurisdiction. Whatever the
applicability of Penal Code section 11165.13 in dependency proceedings, there was much
more here than a positive toxicology test at birth to support jurisdiction. Q.M. had a
7 Penal Code section 11165.13 provides, “For purposes of this article, a positive
toxicology screen at the time of the delivery of an infant is not in and of itself a sufficient
basis for reporting child abuse or neglect. However, any indication of maternal substance
abuse shall lead to an assessment of the needs of the mother and child pursuant to Section
123605 of the Health and Safety Code. If other facts are present that indicate risk to a
child, then a report shall be made [to the county welfare or probation department].”
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history of marijuana use that was found to have rendered her incapable of caring for
another young daughter in a prior dependency proceeding; when Q.M. gave birth to
Jimmy, both she and Jimmy tested positive for marijuana, strongly suggesting Q.M. had
used marijuana throughout the final stages of her pregnancy; Q.M. showed a total lack of
insight into the problem, denying that her marijuana use had contributed to her loss of
custody and parental rights as to Emily or that she had knowingly used marijuana while
pregnant with Jimmy. Instead, she offered varying and, at times, conflicting explanations
for Jimmy’s positive toxicology screen without taking responsibility for her problem. In
addition, while Q.M. made some appropriate efforts to address her marijuana addiction
prior to the jurisdiction hearing, she quit programs and missed several drug tests.
Q.M.’s reliance on In re Drake M. (2012) 211 Cal.App.4th 754 (Drake M.) is
misplaced. The Drake M. court observed generally that prescribed marijuana use was not
synonymous with “substance abuse” and thus, by itself, was insufficient to support
jurisdiction under section 300, subdivision (b). (Drake M., at p. 764 [“The statute is
clear, however, jurisdiction based on ‘the inability of the parent or guardian to provide
regular care for the child due to the parent’s . . . substance abuse,’ must necessarily
include a finding that the parent at issue is a substance abuser. (§ 300, subd. (b).) We
have previously stated that without more, the mere usage of drugs by a parent is not a
sufficient basis on which dependency jurisdiction can be found.”].) Other courts have
made similar pronouncements. (See In re Destiny S. (2012) 210 Cal.App.4th 999, 1003
[“It is undisputed that a parent’s use of marijuana[, hard drugs, or alcohol] ‘without
more,’ does not bring a minor within the jurisdiction of the dependency court”].)
As we explained, unlike in Drake M. or any of the other cases on which Q.M.
relies, this case does not involve a casual or prescribed use of marijuana with no history
or evidence of risk of harm. Q.M. demonstrated a persistent and irresponsible use of
marijuana that endangered one child and put her newborn at a similar risk of harm. That
evidence, coupled with Q.M.’s inability at the time of the jurisdiction hearing to make
sufficient progress in a drug program, was more than sufficient to support the exercise of
dependency jurisdiction over Jimmy. (See Christopher R., supra, 225 Cal.App.4th at
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pp. 1218-1219 [mother’s use of cocaine during last months of her pregnancy confirmed
her “poor judgment and willingness to endanger her children’s safety due to substance
abuse”]; In re Alexis E (2009) 171 Cal.App.4th 438, 453 [“[W]e have no quarrel with
Father’s assertion that his use of medical marijuana, without more, cannot support a
jurisdiction finding that such use brings the minors within the jurisdiction of the
dependency court, not any more than his use of the medications prescribed for him by his
psychiatrist brings the children within the jurisdiction of the court. However, we have
just set out the ‘more’ that supports the court’s finding that his use of medical marijuana
presents a risk of harm to the minors”]; cf. In re David M., supra, 134 Cal.App.4th at
p. 829 [insufficient evidence that mother’s marijuana use posed risk of harm to infant
when infant did not test positive for drugs at birth and no evidence mother used drugs
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during her pregnancy].)
2. Substantial Evidence Supports the Disposition Order Removing Jimmy from
Q.M.’s Custody
Q.M. contends there is insufficient evidence to support the court’s finding there
was no reasonable means to protect Jimmy other than to remove him from her custody.
(See § 361, subd. (c)(1) [dependent child may not be taken from physical custody of his
or her parents unless court finds by clear and convincing evidence there would be
substantial danger to health, safety, protection or physical or emotional well-being if the
child were returned].) The Department and Jimmy’s counsel acknowledged Q.M. loved
Jimmy and appeared to be taking steps to remedy the problems that had led both to the
initiation of the instant petition and the loss of her parental rights over Emily, but
expressed concern about Q.M.’s inconsistent attendance in drug treatment programs and
8 In fact, Drake M. actually reinforces our conclusion that Q.M.’s repeated
marijuana use and her poor choices connected with it put Jimmy at substantial risk of
harm. As that court observed, when, as here, the child in question is of “tender years”
(see Rocco M., supra, 1 Cal.App.4th at p. 824), “the finding of substance abuse is prima
facie evidence of the inability of a parent or guardian to provide regular care resulting in
a substantial risk of harm.” (Drake M., supra, 211 Cal.App.4th at p. 767; accord,
Rocco M., at p. 824; Christopher R., supra, 225 Cal.App.4th at p. 1219.)
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missed drug tests and urged the court to remove Jimmy from Q.M.’s custody until Q.M.
had meaningfully addressed her marijuana problem and comprehended its effect on her
parenting choices. The court agreed and found additional insight and treatment were
necessary before Jimmy could safely be returned to Q.M.’s custody. For the reasons we
have explained, substantial evidence supports that determination.
DISPOSITION
The jurisdiction finding and disposition order are affirmed.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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