In re L.C. CA2/5 ( 2021 )

Filed 3/25/21 In re L.C. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re L.C. et al., Persons Coming B307299
Under Juvenile Court Law.
_________________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 19CCJP04432A-B)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
K.C.,
Defendant and Appellant;
L.C. et al.,
Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Victor G. Viramontes, Judge. Affirmed.
Anne E. Fragasso, under appointment by the Court of
Appeal, for Defendant and Appellant.
Marissa Coffey, under appointment by the Court of Appeal,
for Minors.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Deputy County
Counsel, for Plaintiff and Respondent.
________________________
The juvenile court sustained a jurisdictional finding of
neglect as to mother’s daughters, three-year-old L.C. and one-
year-old -A.H. (pls see minute orders and briefs; you showed A.H.
in the counsel listing), based on mother’s abuse of marijuana and
history of substance abuse. Several months after asserting
jurisdiction, the juvenile court released the children to mother’s
care and ordered her to participate in several programs. Mother
and the minors appeal from the jurisdictional and dispositional
orders. They argue substantial evidence does not support the
finding that mother’s substance use endangered the children. We
affirm.
FACTUAL AND LEGAL BACKGROUND
Mother’s problems with controlled substances first came to
the attention of the Nevada Child Protective Services Agency
(CPS) in 2015.
Mother met with CPS about allegations concerning
mother’s neglect of her oldest child, her son. Mother told the
social worker she used marijuana occasionally to cope with stress
and was high “possibly on ‘marijuana’ ” while meeting with the
social worker. Mother was asked to submit to a drug test but
failed to appear for her appointment. The social worker
concluded mother had substance abuse issues. Mother brought
son to maternal great-grandmother Elizabeth L.’s home in
California, and Elizabeth L. agreed to care for him temporarily.
In 2016, the Los Angeles County Department of Children
and Family Services (Department) initiated proceedings due to
the parents’ failure to make an appropriate plan for son’s care.1
Mother failed to reunify with the child due to her non-compliance
with court orders, and in 2018 the juvenile court terminated
1 Son has a different father than daughters.
2
jurisdiction over son, granting guardianship to Elizabeth L. with
monitored visitation for mother.2
At some point, mother returned to Nevada. In May 2019,
the Nevada CPS received a referral concerning mother and her
two daughters, then ages one and two. Mother’s boyfriend was
arrested at his apartment while daughters were in his care. Law
enforcement had received multiple calls about “drug dealings” at
this apartment, and found “a scale along with drugs and other
paraphernalia in the home.” When mother arrived, she admitted
using marijuana. One of the officers found a vial of what
appeared to be urine, and mother confirmed it was a friend’s
urine she intended to use to drug test for her job.
CPS concluded there was a “Present Danger” to the
daughters as their home was “a known drug house” where drug
sales were occurring while the children were present. Mother
was asked to drug test the next day. Mother represented to CPS
that she and daughters were moving in with maternal uncle in
Nevada, but they left for California the next day. Mother
dropped daughters off at maternal grandmother’s house in Los
Angeles with a notarized letter authorizing maternal
grandmother to take care of them. Mother did not submit to the
drug test requested by CPS.
A few weeks later, in June 2019, the Department received a
referral that mother was neglecting daughters. At the time,
daughters resided in Los Angeles but were not living with
mother. A social worker spoke with several maternal relatives
including maternal grandmother who reported that mother had
left daughters with her in May 2019. Maternal grandmother had
been caring for the two-year-old while the one-year-old was living
2 Son is not a party to this appeal, and we do not discuss him
further.
3
with maternal great-grandmother Lucy C. When asked why
mother had not returned for daughters, maternal grandmother
said mother had “an ongoing battle with her bipolar disorder and
taking her medication,” and may be using drugs because she was
always unstable and without housing or a job.
Lucy C. reported she did not know mother’s whereabouts,
and that mother had asked her to care for the one-year-old
because “she wanted to go out with some friends.” Maternal
uncle reported that mother had “issues” with the children’s father
“because of drugs and domestic violence.” Maternal uncle
“suspect[ed] drug use because of [mother’s] weight loss and [] she
smokes marijuana like there is ‘no tomorrow.’ ”
In July 2019, the social worker spoke to the other maternal
great-grandmother, Elizabeth L., who was helping maternal
grandmother care for the two-year-old. Elizabeth L. said mother
had stopped by once to visit in early July. Mother looked
“unkempt” and “smell[ed] like marijuana or cigarettes.”
On July 12, 2019, the Department filed a petition alleging
the daughters were endangered by mother’s marijuana abuse,
her mental and emotional problems, and her failure to make an
appropriate plan for daughters’ ongoing care. The juvenile court
detained daughters and ordered monitored visits for mother.3
Mother was initially unwilling to meet with the
Department, but in September she submitted to a telephone
interview with a social worker. Mother denied using marijuana,
also stating, “ ‘If I did, it’s perfectly legal.’ ” Mother also refused
to drug test. Both daughters were now in maternal great-
grandmother Elizabeth L.’s care.
3 Daughters’ father did not make an appearance in the
dependency proceedings and is not a party to this appeal.
4
Elizabeth L. reported that mother had been diagnosed with
bipolar disorder and used marijuana “to combat the voices she
hears in her head instead of taking her prescribed medication.”
Maternal grandmother concurred that mother used marijuana to
self-medicate for bipolar disorder but believed it did not mitigate
her symptoms. Maternal grandmother reported that mother had
repeatedly said she was coming to get daughters, even providing
“a date when she would return,” however, mother “never did . . .
show up.”
By the time of the January 2020 jurisdiction hearing in the
Los Angeles juvenile court, mother’s older daughter had just
turned three years old; younger daughter was still one year old.
Mother submitted documentation to the court from her employer
stating she had tested negative for drugs between October and
December 2019. Mother also testified that she did not use
marijuana and had never used marijuana around the children.
She denied having refused to drug test for the Department.
The juvenile court sustained one count of neglect under
Welfare and Institutions Code section 300, subdivision (b)(1)
based on mother’s abuse of marijuana.4 The court found
sufficient evidence of a nexus between the drug abuse and risk to
daughters given their young ages and referring to the incident
with the Nevada boyfriend when drug paraphernalia was found
“out in the home.” The court also found that mother’s admissions
to the Nevada CPS and maternal relatives’ statements about
mother’s drug use provided sufficient evidence in support of this
count. The court concluded that mother’s concession “that she
used other people’s urine to test negative . . . undermine[d] the
negative drug test that she put before the court.” The juvenile
4 All further undesignated statutory references are to the
Welfare and Institutions Code.
5
court then dismissed the allegations of neglect based on mother’s
mental health and her alleged failure to make an appropriate
plan for daughters.
The disposition hearing was held six months later in June
2020. The Department submitted evidence that mother had
missed drug tests in January, February, March, April, May, and
June 2020. She submitted to a drug test on June 22, 2020 that
was negative for all substances. At the hearing, the court
confirmed that mother was enrolled in therapy and a parenting
program, and ordered that daughters be released to mother on
condition that she have appropriate housing. The court also
ordered family maintenance services for mother including a drug
treatment program, individual counseling, and weekly drug
testing. Mother and daughters timely appealed.5
DISCUSSION
Mother and the minors (collectively appellants) argue that
substantial evidence does not support the trial court’s finding of
neglect based upon mother’s abuse of marijuana. Appellants
acknowledge there was substantial evidence mother used
marijuana, but argue there was no evidence she was unable to
care for or supervise daughters such that they were at risk of
harm. We conclude that substantial evidence supports the trial
court’s finding that mother abused marijuana and the abuse
impaired her ability to care for her daughters who were of tender
years. We also conclude substantial evidence also supports the
finding that daughters were placed in substantial risk of harm.
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
5 Father was not present at either the jurisdiction or the
disposition hearing. He is not a party to this appeal.
6
result of the failure or inability of his or her parent or guardian to
adequately supervise or protect the child . . . .” (§ 300, subd.
(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 finding of dependency cannot be based on substance
abuse alone; jurisdiction requires a substantial risk of harm to
the child arising from the substance abuse. [Citation.]” (In re
J.A. (2020) 47 Cal.App.5th 1036, 1046.) Cases finding a
substantial physical danger “ ‘tend to fall into two factual
patterns. One group involves an identified, specific hazard in the
child’s environment—typically an adult with a proven record of
abusiveness. [Citations.] The second group involves children of
such tender years that the absence of adequate supervision and
care poses an inherent risk to their physical health and safety.’
[Citation.]” (In re Christopher R. (2014) 225 Cal.App.4th 1210,
1220.) In cases involving the second group, “ ‘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 physical harm.’ [Citations.]” (Id. at p. 1219;
In re K.B. (2021) 59 Cal.App.5th 593, 603.)
Drawing reasonable inferences, we first conclude the record
contained substantial evidence that mother abused marijuana.
Mother’s history of drug use dated back to 2015 when mother
admitted to the CPS that she used marijuana, and showed up
“high” to a meeting with a social worker. In 2019, when the
police found daughters in a “known drug house” in Nevada with
drugs and drug paraphernalia, mother again admitted to using
marijuana and also to obtaining a friend’s urine sample to pass a
drug test at work. Mother then skipped the drug test scheduled
by CPS and took daughters to California, leaving them with
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maternal grandmother. When mother first visited daughters a
month later, she smelled of marijuana and appeared unkempt.
Maternal relatives confirmed mother’s use of marijuana: she
smoked marijuana continuously (“like there is no tomorrow”) and
used it ineffectively to self-medicate for serious psychiatric
symptoms.
Mother’s recurrent substance use over a period of years,
her inappropriate use of marijuana to self-medicate, her decision
to leave her daughters in a location where drug deals were taking
place, and her general refusal to drug test for CPS or the
Department provided substantial evidence she abused
marijuana.6 (See In re Rebecca C. (2014) 228 Cal.App.4th 720,
726 [substance abuse can be shown with “evidence of life-
impacting effects of drug use”].) This constituted prima facie
evidence of mother’s inability to provide regular care resulting in
a risk of serious physical harm to daughters.
At the time of the jurisdictional hearing, mother failed to
rebut this prima facie evidence. It was reasonable to infer from
mother’s refusal to drug test for the Department that she was
continuing to use drugs. (See, e.g., In re Kadence P. (2015)
241 Cal.App.4th 1376, 1384 [avoiding or refusing to take drug
tests without adequate justification, is “properly considered the
equivalent of a positive test result”].) Evidence also directly
suggested that the effects of mother’s drug abuse interfered with
her ability to care for daughters: mother repeatedly broke her
promise to maternal grandmother to return for them, and
maternal grandmother believed mother’s drug use led mother to
6 The Department also cites to the numerous drug tests
mother missed between the jurisdiction and disposition hearing.
Because this evidence was not before the court at the time the
court made its jurisdictional findings, we do not consider it when
reviewing the evidence supporting jurisdiction.
8
have an unstable lifestyle. Mother’s prior decision to leave her
toddler daughters in an apartment with drug paraphernalia “out
in the home” also showed a nexus between her drug abuse and a
risk to the children. (See, e.g., 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”].) The evidence before the juvenile court was thus
sufficient to support the court’s finding of substantial risk of
harm to children of tender years.
As to appellants’ challenge to the juvenile court’s
dispositional order, appellants argue only that the dispositional
order cannot stand “in the absence of jurisdiction.” Because we
find substantial evidence supports the jurisdiction order, we
reject the argument that the disposition order must be reversed.
DISPOSITION
The jurisdiction and disposition orders are affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J. MOOR, J.
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