In re R.T. CA2/3

Filed 9/24/20 In re R.T. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re R.T. et al., Persons Coming B302738
Under the Juvenile Court Law.

LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. Nos.
AND FAMILY SERVICES, 18CCJP04314D–F

Plaintiff and Respondent,

v.

T.V.,

Defendant and Appellant.

APPEALS from orders of the Superior Court of Los Angeles
County, D. Brett Bianco, Judge. Affirmed.
Paul A. Swiller, under appointment by the Court of Appeal,
for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, Stephanie Jo Reagan, Deputy County
Counsel, for Plaintiff and Respondent.
 INTRODUCTION

Mother Tatiana V. (mother) challenges the juvenile court’s
exercise of dependency jurisdiction over her three children. The
Department of Children and Family Services (Department)
received a referral from an aide at one of the children’s school
stating that the child, who is severely autistic, had injuries to her
head and hand. Subsequent investigation revealed that mother
had been using methamphetamine during the time period when
the child sustained those injuries. The court found jurisdiction
over the children under Welfare and Institutions Code section
300, subdivision (b).1 Finding no error, we affirm.

FACTS AND PROCEDRUAL BACKGROUND

1. The Family and Prior Child Welfare Proceedings
Mother and father2 have three children together, R.T. (born
in 2004), M.T. (born in 2006), and Mariah (born in 2008.) The
parents were married in 2005 and divorced in 2014. They
currently live in separate residences.
All three children have been diagnosed with autism.
Mariah is nonverbal and severely autistic. Mariah bites mother,
hits herself and others, and has been exhibiting increasingly
aggressive behaviors. M.T. and Mariah receive in-home services
after school, every weekday, for three to four hours.

1 Allundesignated statutory references are to the Welfare and
Institutions Code.
2 Father is not involved in the appeal.

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 The family has had several interactions with the
Department. From late 2010 to early 2012, the family
participated in voluntary family maintenance services after the
Department found a general neglect referral to be substantiated.
The referring party alleged the parents were involved in an
altercation in the home while the children were present. In 2011,
the Department received two additional referrals. One related to
Mariah, who was then three years old, after she unlocked the
door and left the house without adult supervision. The other
referral related to all three children and alleged two of the
children had significant diaper rashes that had not been
corrected, all three children wandered outside unsupervised, the
family home did not have any home safety devices, and the home
had an unsecured pool in the backyard. The Department
concluded that both general neglect referrals were substantiated.
In July 2018, the Department filed a petition on behalf of
the three children alleging a history of domestic violence with
father as the aggressor. Although the parents had participated in
voluntary family maintenance services, domestic violence
continued to take place and the court found jurisdiction over the
children under section 300, subdivision (c). The court terminated
jurisdiction in February 2019 and issued exits orders giving the
parents joint legal and physical custody of the children with
primary residence with mother.
2. The Current Child Welfare Proceeding
The Department most recently became involved with this
family in September 2019. On September 4, 2019, an aide at
Mariah’s school observed that Mariah had a black eye as well as
scratches on three fingers and knuckles on one hand. The aide

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did not believe mother’s explanation for the injuries and
contacted the Department.
During an unannounced home visit on September 5, 2019,
a Department social worker interviewed mother, the children,
and two behavioral therapists who were working with the
children. Mother explained that on September 2, 2019, while
mother was still in bed, Mariah put a blanket over her head and
then hit her head (specifically, her left eyebrow area) on a wooden
bed frame. Mother did not seek medical attention for Mariah.
Later that day, the family was at the maternal grandmother’s
house. Mariah got her pinky finger stuck in a metal chair and
mother was unable to free the finger. Members of the Los Angeles
Fire Department were summoned to the home and they cut the
chair in order to free Mariah’s finger, scratching her fingers and
knuckles in the process.
During the initial interview, mother denied currently using
any drugs but reported that when she was a teenager, she used
“PCP, Weed, Coke, Ecstasy, [and] LSD.” She also reported that in
2012 she was hospitalized after she went to a party, “drank wine
and did ‘Meth’ ” and had “ ‘a bad reaction.’ ” Mother agreed to
take a drug test the following day, on September 6, 2019, but did
not appear at the testing site, purportedly because her car would
not start. Mother tested positive for amphetamine and
methamphetamine on September 9, 2019. The social worker
spoke with mother about the test results on September 17, 2019.
Mother denied using methamphetamine and indicated the
positive result must have been caused by Benadryl and Prozac.
On September 18, 2019, mother agreed to submit to
another drug test but later called the social worker to explain
that the test would be positive for methamphetamine. Mother

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admitted that she smoked the drug three days prior and had used
methamphetamine, purportedly for weight loss purposes, four to
six times in the preceding month. Mother stated she did not use
drugs at home and left the children in father’s care when she
used drugs. And although mother denied that her drug use
hindered her ability to take care of the children, they were absent
from school on September 19 and 20, because mother was
reportedly “ill.” She later said she thought she had a stomach flu
or food poisoning and denied that drug use resulted in the
children missing school.
On October 1, 2019, the Department detained the children
from mother and placed them in father’s home. A few days later,
at the detention hearing, the court returned the children to
mother’s home over the Department’s objection. The court
concluded that placement with mother was in the children’s best
interest because father worked and did not have adequate
childcare for them and the children would have difficulty
adjusting to a foster care setting. The court required mother to
drug test weekly, enroll in a drug treatment program, and ensure
that the children attended school regularly.
Mother consistently tested for drugs and alcohol and her
tests in October and early November were negative for all
substances. Mother denied that she needed substance abuse
classes, however. She also resisted enrolling in a drug treatment
program, saying she was confident she could stop using drugs on
her own.

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 The adjudication and disposition hearings took place on
November 14, 2019. Mother testified at the adjudication hearing.
On the basis of the Department’s reports as well as mother’s
testimony, the court sustained the following amended allegation
under section 300, subdivision (b):
“The [children’s] mother … has a history of substance
abuse including PCP, Cocaine, LSD, amphetamine,
methamphetamine, ecstasy, marijuana and prescription
medication and is a recent user of amphetamine [and]
methamphetamine which renders the mother incapable of
providing the children with regular care and supervision. On
09/09/2019 the mother had a positive toxicology screen for
amphetamine and methamphetamine. On 09/09/2019 the mother
was under the influence of amphetamine and methamphetamine
while the children were in the mother’s care and supervision. The
mother’s substance abuse endangers the children’s physical
health and safety, placing the children at risk of suffering serious
physical harm, damage, danger and failure to protect.”
As to disposition, the court concluded the children should
remain in mother’s home. Mother’s case plan requires weekly
drug testing and individual counseling to address case issues.
Mother timely appeals.

DISCUSSION

Mother contends the court’s jurisdiction findings are not
supported by substantial evidence. We disagree.
1. Standard of Review
We review dependency jurisdiction findings for substantial
evidence. (In re D.C. (2015) 243 Cal.App.4th 41, 55.) In doing so,
we view the record in the light most favorable to the juvenile

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court’s determinations, drawing all reasonable inferences from
the evidence to support the court’s findings and orders. Issues of
fact and credibility are the province of the court and we neither
reweigh the evidence nor exercise our independent judgment.
(In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).) But 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.] ... ‘The ultimate test is whether it
is reasonable for a trier of fact to make the ruling in question in
light of the whole record.’ [Citation.]” (In re Savannah M. (2005)
131 Cal.App.4th 1387, 1393–1394, italics omitted; In re
Yolanda L. (2017) 7 Cal.App.5th 987, 992.)
2. The court’s jurisdiction findings are supported by
substantial evidence.
To establish jurisdiction under section 300, subdivision (b),3
on substance abuse grounds, the Department must prove:
(1) “substance abuse by a parent … , (2) causation, and (3) serious
physical harm to the child, or a substantial risk of such harm.”
(In re Rebecca C. (2014) 228 Cal.App.4th 720, 724–725
(Rebecca C.).) “The Department has the burden of proving by a

3 The statute provides in relevant part: “A child who comes within any
of the following descriptions is within the jurisdiction of the juvenile
court which may adjudge that person to be a dependent child of the
court: … [¶] 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 ... 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 … substance abuse.”
(§ 300, subd. (b)(1).)

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preponderance of the evidence that the children are dependents
of the court under section 300. [Citations.]” (I.J., supra, 56
Cal.4th at p. 773.)
Mother contends the Department failed to establish any of
these three requirements. We address them in turn.
2.1. Substance Abuse
As a general matter, the legislature has declared, “The
provision of a home 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.)
And our courts have repeatedly held that a juvenile 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 R.V. (2012) 208 Cal.App.4th 837, 843.)
Mother maintains that her recent use of methamphetamine
does not qualify as substance abuse. Specifically, she cites In re
Natalie A. (2015) 243 Cal.App.4th 178, and argues that she is not
a “substance abuser” as we have defined that term. In Natalie A.,
we referenced our prior opinion in In re Drake M. (2012) 211
Cal.App.4th 754 (Drake M.), in which we quoted the “ ‘full
definition of “substance abuse” found in the [American
Psychiatric Association’s Diagnostic and Statistical Manual of
Mental Disorders (4th rev. ed. 2000) (DSM-IV-TR)][,] [which]
describes the condition as “[a] maladaptive pattern of substance
use leading to clinically significant impairment or distress, as
manifested by one[4] (or more) of the following, occurring within a

4Mother argues incorrectly that the Department was required to
establish all four of the indicators specified.

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12-month period: [¶] (1) recurrent substance use resulting in a
failure to fulfill major role obligations at work, school, or home
(e.g., repeated absences or poor work performance related to
substance use; substance-related absences, suspensions, or
expulsions from school; neglect of children or household)[; ¶]
(2) recurrent substance use in situations in which it is physically
hazardous (e.g., driving an automobile or operating a machine
when impaired by substance use)[; ¶] (3) recurrent substance-
related legal problems (e.g., arrests for substance-related
disorderly conduct)[; and ¶] (4) continued substance use despite
having persistent or recurrent social or interpersonal problems
caused or exacerbated by the effects of the substance (e.g.,
arguments with spouse about consequences of intoxication,
physical fights).” ’ ” (Natalie A., at p. 185.)
In arguing that she does not meet the definition of a
substance abuser, however, mother presents the evidence in the
light most favorable to her, thereby ignoring the applicable
standard of review which requires that we view the evidence in
the light most favorable to the court’s decision. (See, e.g., I.J.,
supra, 56 Cal.4th at p. 773 [“ ‘ “[W]e 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” ’ ”].)
For example, mother asserts that her drug use was “short-
term,” and had permanently ceased by the time the Department
filed the petition. To support this claim, mother highlights that
she tested negative for drugs during the month between the
detention hearing and the adjudication, she never used drugs at
home or in the presence of the children, and she made

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appropriate arrangements for the children’s care while using
drugs. Further, mother correctly notes that her family members
as well as the professionals who provided in-home services to
M.T. and Mariah universally praised her as a caring, patient,
loving mother. The court undoubtedly took these facts into
consideration at the detention hearing, when the court returned
the children to mother’s home, and at disposition, when the court
continued that placement. But to the extent the court determined
these facts, which are indeed favorable to mother, were
outweighed by other factors, we will not substitute our judgment
for the court’s.
Mother’s primary claim is that her use of
methamphetamine in September 2019 was an isolated occurrence
designed to help her lose weight and fit into a “cute dress” in time
to celebrate her birthday in late September. The Department
doubted mother’s explanation, however, and was concerned that
mother was using drugs in order to cope with the stress of caring
for three high-need children with autism on her own. To the
extent the court discredited mother’s explanation for her recent
drug use and gave greater weight to mother’s long-standing
(though apparently infrequent) use of drugs, it was free to do so.
In any event, when the evidence is viewed in the light most
favorable to the judgment, mother meets at least one of the
criteria we referenced in Drake M. During the period mother has
admitted to using methamphetamine, Mariah suffered two
physical injuries and all the children were absent from school for
two days due to her reported “illness.” In addition, mother
continued to use drugs even after the Department intervened in
the case—and even after a drug test came back positive for
methamphetamine. Given that mother had worked with the

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Department on several occasions, it is reasonable to assume that
she was aware her children could be removed from her custody—
yet she continued to use drugs and continued to deny that fact.
2.2. Causation
As already noted, under section 300, subdivision (b), state
intervention is not warranted unless a parent has neglected his
or her child due to one of the enumerated factors, such as drug
use, or there is a substantial risk of harm in the future.
Accordingly, we have held that a parent’s use of marijuana or
other drugs, standing alone, does not generally provide a
sufficient basis for dependency jurisdiction. (See, e.g., In re L.W.
(2019) 32 Cal.App.5th 840, 850 [risk of harm is not presumed
when evidence demonstrates parental drug use]; Rebecca C.,
supra, 228 Cal.App.4th at p. 728 [substance abuse without more
is insufficient to support jurisdiction]; Drake M., supra, 211
Cal.App.4th at p. 769 [drug use without evidence that use has
caused or will cause physical harm insufficient to support
jurisdiction].)
Mother argues—again stating the evidence in the light
most favorable to her—that the evidence does not establish a
connection between her use of methamphetamine and any harm
or risk of harm to the children. We disagree.
On this point, the court was concerned about two main
aspects of the case: Mariah’s injuries and the children’s absences
from school. During the time mother was admittedly using
methamphetamine, Mariah suffered two different injuries. The
court was likely concerned that mother, while impaired, was not
able to render the attention and care required by her three high-
need children—especially Mariah, who had a history of self-
harming and aggressive behaviors. Further, the fact that during

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the same period of time the children missed school due to
mother’s purported illness—and were presumably at home and in
her custody—provides further evidence of a connection between
her drug use and a risk of harm to the children.
2.3. Risk of Harm
Mother strenuously argues that the children have not
suffered, nor are they at substantial risk of suffering, serious
physical harm. Risk to a child from substance abuse can be
established in two ways: (1) through proof of “ ‘an identified,
specific hazard in the child’s environment,’ ” or (2) through proof
that the child is of “ ‘tender years’ ”—i.e., six years old or
younger—in which case a “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.”
(Drake M., supra, 211 Cal.App.4th at pp. 766–767, italics
removed; In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219
[defining “tender years” as six years old or younger].) The
children are older than six years. But the court was justifiably
concerned that all three of these children have been diagnosed
with autism and, at least in Mariah’s case, exhibit behaviors that
heighten the need for constant and close supervision and increase
the risk of harm in the event their care is inadequate.
To show that a child faces a risk of harm at the time of the
jurisdiction hearing, there “ ‘must be some reason beyond mere
speculation to believe the alleged conduct will recur. [Citation.]’
[Citation.]” (In re D.L. (2018) 22 Cal.App.5th 1142, 1146.) In
determining whether conduct is likely to recur, courts may
consider evidence of the parent’s behavior in the past. (In re N.M.
(2011) 197 Cal.App.4th 159, 165.) Here, mother used a variety of
drugs in her teenage years, was hospitalized in 2012 as a result

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of drug and alcohol abuse, and recently resumed using
methamphetamine. As already discussed, the Department found
mother’s explanation for her recent drug use—a desire to lose
weight—to be implausible. And both the court and the
Department expressed concern that mother had an unresolved
substance abuse issue that could continue to plague her if left
untreated. These facts support the court’s conclusion that the risk
of serious physical harm was ongoing.
Additionally, a parent’s denial of wrongdoing or failure to
recognize the negative impact of her conduct is relevant to
determining risk under section 300. (See In re Tania S. (1992) 5
Cal.App.4th 728, 735, fn. 4; see also In re A.F. (2016) 3
Cal.App.5th 283, 293 [“ ‘[D]enial is a factor often relevant to
determining whether persons are likely to modify their behavior
in the future without court supervision’ ”].) The record in the
present case indicates that mother initially denied using drugs.
Even after her first drug test came back positive for
amphetamine and methamphetamine, she claimed that her
positive test results must have been due to her use of Prozac
and/or Benadryl. And although mother eventually admitted she
had been using methamphetamine, she refused to enroll in a
drug treatment program, stating that she would be able to stop
on her own. Mother also denied that her drug use impaired her
parenting in any way, notwithstanding that the Department
became involved after Mariah suffered two injuries. (See A.F., at
p. 293 [a parent’s denial of responsibility is relevant in
determining whether the parent’s conduct is likely to recur in the
future].)
Our conclusion does not diminish mother’s admirable
efforts in this case. We simply conclude that the court’s exercise

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of dependency jurisdiction in the first instance was not erroneous.
Assuming mother’s progress continues, we are confident that the
dependency court will consider that fact in future proceedings.

DISPOSITION

The adjudication orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.
WE CONCUR:

EDMON, P. J.

EGERTON, J.

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