In re Kashmere S. CA2/7 ( 2023 )

Filed 3/7/23 In re Kashmere S. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re KASHMERE S., a Person B320857
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No.
19LJJP00581C)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JOHNEISHA C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Susan Ser, Judge. Affirmed.
Darlene Azevedo Kelly, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, David Michael Miller, Senior Deputy
County Counsel, for Plaintiff and Appellant.
_____________________
Johneisha C. appeals the juvenile court’s jurisdiction
findings and disposition order declaring Kashmere S., her
newborn son, a dependent child of the court, removing Kashmere
from Johneisha’s custody, placing the child with his father,
Kendrick S., under the supervision of the Los Angeles County
Department of Children and Family Services, and ordering
family maintenance services for Kendrick and enhancement
services for Johneisha. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Sustained Dependency Petition and Disposition
Orders
The juvenile court on May 19, 2022 sustained an amended
petition pursuant to Welfare and Institutions Code section 300,
subdivisions (b)(1) (failure to protect) and (j) (abuse of siblings),1
alleging Johneisha had a history of substance abuse including
cocaine, marijuana and alcohol and was a current abuser of
cocaine and marijuana, rendering her incapable of providing
appropriate care for Kashmere, who was of such a young age as
to require constant care and supervision. The sustained petition
specifically alleged Johneisha had abused substances during her
pregnancy with Kashmere, as evidenced by a positive toxicology
screen for marijuana and cocaine on August 21, 2021. (Kashmere
1 Statutory references are to this code.
2
was born in March 2022.) It also alleged Kashmere’s siblings,
D.P. and S.P.,2 were previously dependent children of the court
and had been permanently removed from Johneisha’s care (and
placed with a legal guardian) due to Johneisha’s substance abuse.
A count alleging Kendrick’s substance abuse pursuant to
section 300, subdivision (b)(1), was dismissed at the jurisdiction
hearing, and he remained a nonoffending parent.
At the disposition hearing the same day, the court removed
Kashmere from Johneisha and placed him with Kendrick under
the supervision of the Department. The court ordered family
maintenance services for Kendrick and enhancement services for
Johneisha, which included participation in a full drug and alcohol
treatment program with aftercare and drug testing and
individual counseling to address case issues. Johneisha’s
visitation remained monitored, but the disposition order provided
she could breast feed Kashmere and have unmonitored visits
with him in the home of the paternal grandmother, where he and
Kendrick were living, once she had completed four consecutive
clean drug tests. The Department was given discretion to
liberalize Johneisha’s visits “up to and including release to
Mother.”3
2 Kendrick was not the father of either D.P. or S.P.
3 The court scheduled a section 364 review hearing for
November 21, 2022. It was continued at Johneisha’s request to
December 27, 2022 for a contest. A further section 364 review
hearing is now scheduled for March 10, 2023.
3
2. The Evidence Supporting the Juvenile Court’s Findings
a. Proceedings involving Kashmere’s half-siblings
The Department first became involved with Johneisha and
her family in July 2019 when law enforcement responded to an
emergency call and found then-two-year-old S.P. covered with
feces inside Johneisha’s home, which was filthy and infested with
roaches. Officers were concerned Johneisha was under the
influence of drugs at the time.
Johneisha tested positive for cocaine in July 2019, but
denied cocaine use, claiming she had found a bag of white powder
in the street and a wind gust blew some of the substance into her
face. Dependency proceedings were initiated. The juvenile court
on October 15, 2019 sustained the Department’s amended
petition pursuant to section 300, subdivision (b)(1), based on the
ongoing substance abuse of Johneisha and Thomas P., S.P.’s
father. D.P. and S.P. were declared dependent children of the
court in December 2019, and the children were removed from
their parents’ custody. Johneisha enrolled in, but failed to
complete, several substance abuse programs and had positive
tests for marijuana and alcohol during her reunification efforts.
In March 2021 the court terminated Johneisha’s family
reunification services. The court granted a nonrelated extended
family member legal guardianship of the children in July 2021
and terminated dependency jurisdiction.4
4 On appeal we conditionally affirmed the juvenile court’s
findings and orders granting a legal guardianship for D.P. and
S.P. and terminating dependency jurisdiction, remanding the
matter for the court to enter a new visitation order specifying the
frequency and duration of visits between Johneisha and the
children and for full compliance with the inquiry and notice
4
b. Johneisha’s continuing drug use
Johneisha sought medical treatment in August 2021. A
pregnancy test revealed she was then six weeks pregnant. She
also tested positive for cocaine and marijuana. When interviewed
after Kashmere’s birth, Johneisha admitted she had used
marijuana prior to the medical visit but denied using cocaine.
She insisted she had not known she was pregnant and stopped
any drug use during the remainder of her pregnancy. In a
subsequent interview Johneisha admitted using cocaine but
repeated she did not know she was pregnant at the time and
claimed she had recently used cocaine only that one time,
explaining she was depressed about having lost D.P. and S.P. to
their legal guardian.5 Both Johneisha and Kashmere were
negative for all drugs at Kashmere’s birth in March 2022.
The juvenile court authorized Kashmere’s removal from
Johneisha following the child’s birth, and the Department filed a
section 300 petition on behalf of Kashmere on April 1, 2022.
Johneisha enrolled in an outpatient substance abuse program,
which she attended three days a week. Although an April 27,
2022 report indicated Johneisha was making some progress, the
report also stated she had tested positive for opiates and alcohol
during her most recent drug test. Johneisha said the opiate was
provisions of the Indian Child Welfare Act of 1978 (25 U.S.C.
§ 1901 et seq.) and related California law. (In re D.P. (Dec. 5,
2022, B315051) [nonpub. opn.].)
5 Johneisha—27 years old at the time of the jurisdiction
hearing—said she started using cocaine when she was 21 or
22 years old but did so only when partying. She denied using
cocaine consistently. She started using marijuana when she was
15 years old and stopped at age 20, “well like off and on.”
5
from a prescription drug given to her following dental work and
the alcohol was only a glass of wine. It appeared that Johneisha
left her substance abuse program before the May 19, 2022
jurisdiction hearing: The Department told the court she had
been discharged by the program; Johneisha’s counsel responded
she had been released from the program because of lack of
transportation.
Reviewing this evidence to explain its decision to sustain
the section 300, subdivisions (b)(1) and (j), counts, the juvenile
court stated, “The court does note that Mother has a history of
substance abuse. Her two other children referenced in the
allegations were removed from her because of Mother’s substance
abuse, and they proceeded to legal guardianship. In addition,
while Mother was pregnant, she tested positive. She claimed
that she didn’t know she was pregnant, but more concerning to
the court, she denied using substances while pregnant, and, when
presented with the positive test, she denied using. So Mother is
not being forthcoming about her substance abuse issues. In
addition, the court is concerned about the recent positive test for
alcohol and opiates.”
DISCUSSION
1. Governing Law and Standard of Review
The purpose of the dependency law “is to provide maximum
safety and protection for children who are currently being
physically, sexually, or emotionally abused, being neglected, or
being exploited, and to ensure the safety, protection, and physical
and emotional well-being of children who are at risk of that
harm.” (§ 300.2, subd. (a); see In re A.F. (2016) 3 Cal.App.5th
283, 289; In re Giovanni F. (2010) 184 Cal.App.4th 594, 599.) In
addition, the Legislature has declared, “The provision of a home
6
environment free from the negative effects of substance abuse is
a necessary condition for the safety, protection and physical and
emotional well-being of the child.” (§ 300.2, subd. (a).)
Section 300, subdivision (b)(1), allows a child to be
adjudged a dependent of the juvenile court 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 . . . [¶] (A) The
failure or inability of the child’s parent or guardian to adequately
supervise or protect the child. [¶] . . . [¶] [or] (D) 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.” A jurisdiction finding under
section 300, subdivision (b)(1), requires the Department to prove
three elements: (1) the parent’s or guardian’s neglectful conduct
or failure or inability to protect the child; (2) causation; and
(3) serious physical harm or illness or a substantial risk of
serious physical harm or illness. (In re L.W. (2019)
32 Cal.App.5th 840, 848; In re Joaquin C. (2017) 15 Cal.App.5th
537, 561; see In re R.T. (2017) 3 Cal.5th 622, 624
[“section 300(b)(1) authorizes dependency jurisdiction without a
finding that a parent is at fault or blameworthy for her failure or
inability to supervise or protect her child”].)
Section 300, subdivision (j), authorizes dependency
jurisdiction when “[t]he child’s sibling has been abused or
neglected, as defined in subdivision (a), (b), (d), (e), or (i), and
there is a substantial risk that the child will be abused or
neglected, as defined in those subdivisions.” In considering the
applicability of subdivision (j), the Legislature directed the
juvenile court to “consider the circumstances surrounding the
abuse or neglect of the sibling, the age and gender of each child,
7
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).) “‘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 [enumerated]
subdivisions . . . . 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.’” (In re I.J. (2013) 56 Cal.4th
766, 774; accord, In re D.B. (2018) 26 Cal.App.5th 320, 327-328.)
Although section 300 requires proof the child is subject to
the defined risk of harm at the time of the jurisdiction hearing
(In re D.L. (2018) 22 Cal.App.5th 1142, 1146), 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
I.J., supra, 56 Cal.4th at p. 773; In re Kadence P. (2015)
241 Cal.App.4th 1376, 1383; In re N.M. (2011) 197 Cal.App.4th
159, 165.) The court may consider past events in deciding
whether a child currently needs the court’s protection. (In re
Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216; In re
N.M., at p. 165.) 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 S.O. (2002) 103 Cal.App.4th 453, 461;
accord, In re J.N. (2021) 62 Cal.App.5th 767, 775 [“[e]vidence of
past conduct may be probative of current conditions and may
assist [the Department] in meeting [its burden of proof]”]; In re
Kadence P., at p. 1384.)
8
“‘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.” [Citation.] “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.’”” (In re
I.J., supra, 56 Cal.4th at p. 773.) We 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 find that the order is appropriate. (Ibid.;
accord, In re I.C. (2018) 4 Cal.5th 869, 892.)
2. Substantial Evidence Supports the Juvenile Court’s
Findings and Disposition Order
Johneisha contends, notwithstanding her extended history
of substance abuse, allowing her to retain care and custody of
Kashmere created no risk of harm to her newborn son. She
emphasizes Kashmere was healthy at his birth in March 2022,
and both she and Kashmere tested negative for all substances at
that time. Moreover, following her failed drug test in August
2021 when six weeks pregnant with Kashmere, the umbilical
cord blood test indicated Johneisha had stopped using drugs from
the first trimester of her pregnancy until the child was born.
Johneisha insisted she did not know she was pregnant when she
used cocaine and marijuana prior to the August 2021 test and
explained the positive test for opioids and alcohol in April 2022
9
was due to acetaminophen and codeine, prescribed for her
following dental treatment, and a glass of wine.
Omitted from this rather anodyne summary of the
evidence, however, is Johneisha’s denial after Kashmere’s birth
that she had continued to use cocaine following the termination
of the prior dependency proceedings despite test evidence to the
contrary and her repeated failure to successfully complete
substance abuse programs while trying to reunify with
Kashmere’s siblings.6 (See In re D.B. (2020) 48 Cal.App.5th 613,
622 [“‘[o]ne cannot correct a problem one fails to acknowledge’”];
In re A.F., supra, 3 Cal.App.5th at p. 293 [“‘[d]enial is a factor
often relevant to determining whether persons are likely to
modify their behavior in the future without court supervision’”];
cf. § 300.2 [“[s]uccessful participation in a treatment program for
substance abuse may be considered in evaluating the home
environment”].) Moreover, although, as Johneisha notes, relapse
may be a normal part of recovery (see In re B.E. (2020)
46 Cal.App.5th 932, 941 [“[A] relapsed parent is far from
hopeless. It is decidedly not fruitless to offer services to a parent
who genuinely made an effort to achieve sobriety but slipped up
on the road to recovery”]), the prospect of further relapses for a
parent like Johneisha with a decade-long history of substance
abuse posed a substantial risk of harm to a newborn left in her
care. Weighing the likelihood and nature of that risk in a
particular case is for the juvenile court. (See In re D.B., supra,
6 As the Department points out, Johneisha’s unresolved
substance abuse problem put her unborn child at substantial risk
of harm when she again used cocaine and marijuana in
August 2021, even if Johneisha did not realize she was pregnant
at the time.
10
26 Cal.App.5th at pp. 328-329 [the substantial evidence standard
does not permit the reviewing court to reweigh the evidence or
resolve evidentiary conflicts]; In re Yolanda L. (2017)
7 Cal.App.5th 987, 992 [same]; see also In re E.E. (2020)
49 Cal.App.5th 195, 217 [juvenile court “‘is in the best position to
determine the degree to which a child is at risk based on an
assessment of all the relevant factors in each case’”].)
As discussed, section 300, subdivision (j), gives the juvenile
court greater latitude to exercise jurisdiction over a child whose
siblings were subject to abuse than the court would have in the
absence of the sibling abuse. (In re I.J., supra, 56 Cal.4th at
p. 774.) Here, less than one year before the juvenile court
sustained the Department’s petition to protect Kashmere, the
court had determined Johneisha’s ongoing, long-term substance
abuse and failure to adequately address it created a significant
risk of harm for Kashmere’s siblings, justifying a permanent plan
of legal guardianship for them. Considering the circumstances of
the proceedings involving D.P. and S.P., as well as Johneisha’s
continued use of cocaine and marijuana after she lost custody of
those children, the record amply supported the juvenile court’s
finding there was a significant risk of harm to the newborn
Kashmere, as there had been to his siblings, even if we were to
disregard the April 2022 positive test for opioids and alcohol.
(See In re Christopher R., supra 225 Cal.App.4th at p. 1216 [the
exercise of dependency court jurisdiction is proper when a child is
of such tender years that the absence of adequate supervision
and care poses an inherent risk to his or her physical health and
safety]; cf. In re N.F. (2021) 68 Cal.App.5th 112, 121 [“[i]n the
context of a substance abuse problem that has repeatedly resisted
treatment in the past, a showing of materially changed
11
circumstances requires more than a relatively brief period of
sobriety or participation in yet another program”].)7
As for Johneisha’s challenge to the order removing
Kashmere from her custody and placing him with his
nonoffending father, the evidence supporting the jurisdiction
finding also supports the disposition order. As we have
repeatedly held, a finding of substance abuse constitutes “‘prima
facie evidence of the inability of a parent or guardian to provide
regular care resulting in a substantial risk of harm’” for a child of
“tender years”—that is, a child six years old or younger. (In re
Christopher R., supra, 225 Cal.App.4th at p. 1219; accord, In re
Kadence P., supra, 241 Cal.App.4th at p. 1385.) Kashmere was at
risk of harm if he remained in Johneisha’s care, and no
reasonable alternatives to removal existed.8 (See In re L.O.
7 Because substantial evidence supports the section 300,
subdivision (j), jurisdiction finding, we need not consider the
juvenile court’s additional jurisdiction finding under section 300,
subdivision (b)(1). (See In re I.J., supra, 56 Cal.4th at
p. 773 [“‘[w]hen a dependency petition alleges multiple grounds
for its assertion that a minor comes within the dependency
court’s jurisdiction, a reviewing court can affirm the juvenile
court’s finding of jurisdiction over the minor if any one of the
statutory bases for jurisdiction that are enumerated in the
petition is supported by substantial evidence’”].)
8 Although not argued at the jurisdiction/disposition hearing,
on appeal Johneisha suggests a home-of-mother order
conditioned on living with the paternal grandmother would have
been sufficient to protect Kashmere because the paternal
grandmother, a nurse, was familiar with the signs of substance
abuse. The possibility of after-the-fact detection, however, does
not adequately safeguard an infant from the risks associated with
the neglectful actions of a parent under the influence of cocaine.
12
(2021) 67 Cal.App.5th 227, 238 [“‘[t]he court need not wait until a
child is seriously abused or injured to assume jurisdiction and
take the steps necessary to protect the child’”]; In re Kadence P.,
at p. 1383 [same]; In re R.V. (2012) 208 Cal.App.4th 837, 843
[same].)
DISPOSITION
The jurisdiction findings and disposition order are
affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
Moreover, the court expressly authorized unlimited, unmonitored
visitation in the paternal grandmother’s home (and gave the
Department discretion to release Kashmere to his mother) after
Johneisha completed four successive negative drug tests—as a
practical matter, essentially the equivalent of a home-of-mother
order once Johneisha demonstrated her commitment to
addressing the substance abuse problem that caused her to lose
custody of her two older children.
13