In re J.R. CA2/5 ( 2020 )

Filed 12/29/20 In re J.R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re J.R., et al., Persons Coming B304328
Under the Juvenile Law.
___________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 19CCJP04241A-B)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.C. and L.R.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Martha Matthews, Judge. Affirmed in part and
dismissed in part.
Jacob I. Olson, under appointment by the Court of Appeal,
for Defendant and Appellant L.R.
Gina Zaragoza, under appointment by the Court of Appeal,
for Defendant and Appellant M.C.
Mary C. Wickham, County Counsel and Kim Nemoy,
Assistant County Counsel, for Plaintiff and Respondent.
2
M.C. (Mother) and L.R. (Father) are the parents of two
children: two-and-a-half year old J.R. and 15-month-old A.R.
(collectively, the Minors).1 The parents appeal juvenile court
orders assuming dependency jurisdiction over the Minors and
removing them from the parents’ custody based on evidence of
their failure to protect the children from the parents’ substance
abuse. We are asked to decide whether substantial evidence
supports the juvenile court’s jurisdiction findings and removal
order.
I. BACKGROUND
A. Mother’s Arrest for Methamphetamine Possession and
the Discovery of a Methamphetamine Pipe in the
Bedroom Where Minors Slept
In April 2019, the police arrested Mother, who was
pregnant at the time, for methamphetamine possession. Mother
told the arresting officer it had been three years since she last
used methamphetamine,2 the methamphetamine in her
possession belonged to Father, and she was on her way to report
him to his probation officer.
1
These were the Minors’ ages at the time the dependency
proceedings commenced.
2
In 2018, the court terminated Mother’s parental rights over
three of her children that were under the court’s jurisdiction due
partly to Mother’s abuse of illegal drugs, including
methamphetamine. Another of Mother’s children was adopted in
2006 by relatives in Texas. Before that, in 2003, the juvenile
court terminated Mother’s parental rights over two other
daughters, also partly due to Mother’s substance abuse.
3
Two months later, police visited the family’s home after
Father failed to report to his probation officer. In the bedroom
shared by the parents and the Minors, police discovered a
methamphetamine pipe with residue inside of it. Police arrested
Father and observed Mother seemed “erratic and nervous”; the
officers could not determine, however, whether she was under the
influence of an illegal substance.3
The Los Angeles County Department of Children and
Family Services (the Department) began investigating the
Minors’ welfare after Father’s arrest. During an interview with a
Department social worker, Mother admitted she lost her parental
rights to six of her older children, two of whom were born with
cocaine or methamphetamine in their systems. Mother was still
then pregnant and she admitted she was using marijuana. After
several delays, Mother submitted to a drug test which yielded
negative results.
During his interview with a Department social worker,
Father admitted the methamphetamine pipe was his. Father’s
on-demand drug test was negative and his probation officer
reported Father was regularly tested for drugs and the results
had been positive only for marijuana.
B. The Dependency Petition and Initial Proceedings
On July 3, 2019, the Department filed a multi-count
dependency petition alleging J.R. and A.R. were children
described by Welfare and Institutions Code section 300,
3
A probation officer who was present when Father was
arrested similarly observed Mother’s“nervous” and “jittery”
manner and believed Father was “taking the blame for the pipe.”
4
subdivisions (a), (b), and (j).4 As relevant for our purposes, the
petition alleged in count b-1 that the Minors were at risk of
serious harm as a result of the discovery of the
methamphetamine pipe in their bedroom and Father’s arrest for
violating the terms of his probation. Count b-3 alleged the
Minors were endangered by Mother’s current use of marijuana
and her 17-year history of substance abuse (a history that lead to
several of the Minors’ siblings being prior dependents of the
juvenile court). The subdivision (j) count asserted the Minors
were at risk as a result of the abuse and neglect suffered by their
six older siblings due to Mother’s history of substance abuse.
Following the filing of the petition, Mother was interviewed
by a Department investigator. Mother, who was then 43 years
old, told the investigator that she began using cocaine in 1996
and continued using until roughly 2010; after about six years of
sobriety, she began using methamphetamine in or around 2015.
Although Mother claimed she had been sober since
approximately 2016, she admitted she enrolled in substance
abuse programs in 2017 and 2018. When the investigator
questioned Mother about the inconsistencies in her timeline, she
“started to stutter” and offered responses that “did not make
sense.” Mother also gave a different account of why she was
arrested for possession of methamphetamine. To the
Department’s investigator, she made no mention of taking the
methamphetamine to Father’s probation officer; she simply
stated that after finding the drug, she planned to throw it away.
4
Undesignated statutory references that follow are to the
Welfare and Institutions Code.
5
Mother submitted to seven random drug tests between June and
August 2019, and all of these were negative.
The investigator was unable to interview Father because he
was arrested in August 2019 for violating the terms of his
probation by associating with gang members who were in
possession of methamphetamine. Prior to his arrest, Father had
twice tested negative for drugs but also failed to appear for
testing on three occasions.
In advance of the jurisdiction and disposition hearing, the
Department reported Mother was enrolled in several counseling
programs, including an outpatient drug treatment program. As
for Father, the Department advised that he too was enrolled in a
substance abuse treatment program and was submitting
regularly to drug testing, the results of which had been negative.
Although the parents were making efforts to address the
circumstances that gave rise to the detention of the Minors, the
Department recommended neither parent receive family
reunification services. In the Department’s view, Mother’s
unresolved drug use and her failure to learn from her prior
dependency cases disqualified her from receiving such services.
Similarly, the Department believed that Father continued to
make poor life decisions as evidenced by his recent arrests for
probation violations.
C. The Jurisdiction and Disposition Hearing
The juvenile court held a jurisdiction and disposition
hearing in January 2020. The court admitted Department
reports in evidence, as well as exhibits from the parents
documenting their participation in treatment programs. After
hearing argument, the court sustained the petition in part. The
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court sustained the b-1 count in the petition as to Mother and
Father, finding the methamphetamine pipe in the family’s
bedroom to be a “highly incriminating object” from which a
“strong inference” can be drawn that one or both of the parents
had a “problem with methamphetamine.” The court also
sustained the b-3 count and the section 300, subdivision (j) count
as to Mother, finding her long history of drug abuse and evidence
of recent relapses posed a substantial risk to the well-being of the
Minors. The court dismissed the remaining petition counts.
With regard to disposition, counsel for the Department and
the Minors urged the court to remove the children from the
parents’ custody. Mother argued the contrary and asserted the
principal “trigger” for her drug use—her relationship with
Father—was no longer an issue because she had ended the
relationship and did not plan on resuming it. Mother did
concede, though, that this was a recent development: she ended
the relationship only three weeks prior to the hearing. Mother
also acknowledged that her current drug treatment program was
her third such program and that she had failed to complete the
first one.
The juvenile court found Mother’s current efforts to address
her substance abuse were “precarious” due to several factors.
First, there were Mother’s differing accounts of her arrest for
possession of methamphetamine; as the court observed,
“Recovery doesn’t work unless a person is honest.” The court also
found it concerning that Mother waited to separate herself from
Father: “One of the most important aspects of recovery is
separating oneself from people who are still using, so it should
have been obvious quite some time ago that remaining in a
relationship with Father was not a good idea, and yet apparently,
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the change in their relationship was very, very recent.” Finally,
the court found it would be inadvisable to return the Minors to
Mother when she was also caring for a newborn infant.
The court ordered the Minors removed from their parents’
custody due, in principal part, to Mother’s “high risk of relapse.”
Although the Department had recommended the denial of
reunification services, the court ordered services for both parents,
as well as monitored visitation.
II. DISCUSSION
There is ample evidence that dependency jurisdiction under
section 300, subdivision (j) was proper, and that obviates the
need to discuss the remaining bases of jurisdiction found by the
juvenile court. (In re I.J. (2013) 56 Cal.4th 766, 773-774 (I.J.).)
Mother’s parental rights were terminated as to six of her older
children as a result of her substance abuse, and less than one
year after completing her second substance abuse treatment
program, Mother was arrested for possession of
methamphetamine. This, combined with the discovery of the
methamphetamine pipe in the bedroom where the Minors slept
(no matter which parent was actually using the pipe), adequately
establishes a substantial risk of serious physical harm to the
Minors.
As for the parents’ separate challenge to the disposition
order, we have taken judicial notice of a juvenile court minute
order stating the Minors were more recently placed back in
Mother’s custody—the disposition both parents requested. That
means there is no effective relief we can provide as to the parents’
challenge to the removal order—making it moot.
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A. Substantial Evidence Supports the Jurisdiction
Finding
Section 300, subdivision (j), authorizes a juvenile court to
assume dependency jurisdiction over a child when the following
two requirements are met: “[t]he child’s sibling has been abused
or neglected, as defined in subdivision [(b)(1) or other
subdivisions], and there is a substantial risk that the child will be
abused or neglected, as defined in those subdivisions.”5 Under
section 300, subdivision (b)(1), a child is a dependent 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 or guardian to
adequately supervise or protect the child . . . .” (§ 300, subd.
5
Section 300, subdivision (j) lists factors for a court to
consider when deciding whether to exercise jurisdiction: the age
and gender of each child, the nature of the abuse or neglect of the
sibling, the mental condition of the parent or guardian, and any
other factors the court considers probative in determining
whether there is a substantial risk to the child. (§ 300, subd. (j).)
Subdivision (j) “‘allows the court to take into consideration factors
that might not be determinative if the court were adjudicating a
petition filed directly under one of those subdivisions. [¶] The
broad language of subdivision (j) clearly indicates that the trial
court is to consider the totality of the circumstances of the child
and his or her sibling in determining whether the child is at
substantial risk of harm, within the meaning of any of the
subdivisions enumerated in subdivision (j). The provision thus
accords the trial court greater latitude to exercise jurisdiction as
to a child whose sibling has been found to have been abused than
the court would have in the absence of that circumstance.’
[Citation.]” (I.J., supra, 56 Cal.4th at 774.)
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(b)(1).) In reviewing a juvenile court’s jurisdiction findings, “‘we
look to see if substantial evidence, contradicted or
uncontradicted, supports them.’” (In re R.T. (2017) 3 Cal.5th 622,
633.)
The requisite substantial evidence to assume jurisdiction
over the Minors under section 300, subdivision (j) exists here. It
was undisputed that Mother’s parental rights had been
terminated for six of her older children due to Mother’s struggles
with substance abuse, including methamphetamine. There was
also good evidence the Minors were at substantial risk of abuse or
neglect at the time of the jurisdiction hearing: both parents had
recently been arrested for possessing methamphetamine and
police found a methamphetamine pipe (with residue still inside)
in the bedroom the Minors shared with their parents. This
evidence is a proper factual predicate for a section 300,
subdivision (j) finding. (See, e.g., In re Kristin H. (1996) 46
Cal.App.4th 1635, 1651 [evidence supported finding that mother’s
drug use posed risk of harm where drug paraphernalia
containing residue was left where child could reach it]; accord, In
re Yolanda L. (2017) 7 Cal.App.5th 987, 993 [“Leaving drugs or
drug paraphernalia within the child’s reach is an example of
negligent conduct that will support section 300, subdivision (b)
dependency jurisdiction”].)
It is no answer, as Mother argues, that she did not test
positive for use of methamphetamine in the six months before the
jurisdiction hearing. Mother has an extensive history of drug
abuse, including using cocaine and/or methamphetamine while
pregnant. The negative drug tests were a promising
development, but the juvenile court certainly had solid grounds to
conclude her history of relapse (entering two treatment programs
10
in the two years immediately preceding the filing of the petition,
while completing only one of them) was good reason to believe the
Minors—who were still very young—remained at substantial risk
of serious harm. (See In re J.C. (2014) 233 Cal.App.4th 1, 7
[seven months of sobriety insufficient to show parent was not at
risk of relapse]; In re Amber M. (2002) 103 Cal.App.4th 681, 686
[mother’s 372 days of sobriety insufficient to show changed
circumstances in light of her many years of substance abuse and
previous relapses]; see also In re Christopher R. (2014) 225
Cal.App.4th 1210, 1219 [highlighting the special problem of
substance abuse for children of “‘tender years’”].)
B. The Challenge to the Juvenile Court’s Disposition
Order Is Moot
“At the dispositional hearing, a dependent child may not be
taken from the physical custody of the parent under section 361
unless the court finds there is clear and convincing evidence
there is or would be a substantial danger to the child’s physical
health, safety, protection, or physical or emotional well-being if
returned home, and that there are no reasonable means to
protect the child’s physical health without removing the child.”
(In re D.B. (2018) 26 Cal.App.5th 320, 328.) “A removal order is
proper if it is based on proof of (1) parental inability to provide
proper care for the minor and (2) potential detriment to the minor
if he or she remains with the parent.” (In re T.W. (2013) 214
Cal.App.4th 1154, 1163 [focus of the statute is on averting harm
to the child].)
According to juvenile court minute orders we have
judicially noticed, the juvenile court found at a September 2020
hearing that Mother had made substantial progress and ordered
11
the Minors returned to her custody on the condition that she
continue to drug test and comply with her case plan. Because
that is the sole relief sought in this appeal as to the challenge to
the juvenile court’s disposition order, there is no effective relief
we can provide and the challenge is moot. (See, e.g., In re N.S.
(2016) 245 Cal.App.4th 53, 60 [“[T]he critical factor in considering
whether a dependency appeal is moot is whether the appellate
court can provide any effective relief if it finds reversible error”].)
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DISPOSITION
The jurisdiction findings are affirmed, and the challenge to
the disposition order is dismissed as moot.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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