Filed 11/24/20 In re K.M. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re K.M., et al., Persons Coming B304516
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. Nos. 19CCJP07128,
DEPARTMENT OF CHILDREN 19CCJP07128A,
AND FAMILY SERVICES, 19CCJP07128B)
Plaintiff and Respondent,
v.
L.F.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Victor G. Viramontes, judge. Affirmed.
Amy Z. Tobin, under appointment by the Court of Appeal,
for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, and David Michael Miller, Deputy
County Counsel, for Plaintiff and Respondent.
________________________
INTRODUCTION
Mother appeals from the jurisdictional findings and
disposition orders declaring her children dependents of the
juvenile court after the court sustained a petition pursuant to
Welfare and Institutions Code section 300, subdivision (b).1 She
argues there was insufficient evidence to support jurisdiction
based on her failure to protect the children from father’s
substance abuse. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has two children, daughter (born 2011) and son
(born 2014) by different fathers. At the inception of this
dependency case, mother and the children resided with son’s
father, son’s paternal grandparents, and son’s paternal 14-year-
old aunt. For convenience and clarity, we refer to son’s father as
“father.”
Daughter was dependent of the juvenile court from 2012 to
2013 due to her father, D.M.’s domestic violence and substance
abuse issues. Dependency jurisdiction in that matter was
eventually terminated with mother having sole custody of
daughter. D.M. received monitored visitation.
1. DCFS Involvement and Initial Safety Plan
On October 3, 2019, DCFS received a child abuse referral
after father was seen slapping and yelling at five-year-old son
when dropping him and eight-year-old daughter off at school.
The reporting party observed a mark on son’s face and smelled
marijuana emanating from father’s car as the children exited.
DCFS interviewed an aid at the school who assisted with the
school valet program in the mornings. She confirmed that she,
other staff, and parents witnessed father hit son on the face with
1 All subsequent statutory references are to the Welfare and
Institutions Code.
2
an open hand. Son had a red mark on his cheek from the slap.
The aid expressed concern that father’s car regularly smelled
liked marijuana when he dropped the children off at school. She
never witnessed anyone smoking in the car but noted the
marijuana odor was “very strong.”
DCFS interviewed the family on October 8, 2019. Both
children confirmed father hit son at drop off. The children were
unfamiliar with marijuana and had not witnessed father smoke
anything. The children stated father drove them to school daily.
Mother admitted that she was aware of father’s daily use of
marijuana. Mother described the family’s daily routine: father
drove mother to work between 4:00 a.m. and 4:30 a.m., he
smoked marijuana around 6:00 a.m. to manage his foot and back
pain, and he then drove the children to school at 7:30 a.m. She
stated father sometimes picks the children up after school and
transports them home. Mother reported that father “carries it
[marijuana] with him at all times and will leave it in the car
when he is home.”
Mother dismissed DCFS’s concerns about father driving the
children under the influence of marijuana and expressed her
belief that father was sober by the time he transported the
children to school. Mother reported father rarely drank alcohol
and never used other substances. Mother eventually agreed to a
safety plan where she would no longer allow father to smoke
marijuana in the mornings prior to transporting the children to
school.
Father admitted to hitting son in the face with an open
hand, stating, “ ‘I did hit him; he was crying like a little girl.’ ”
Father said he hit son as punishment for calling father a
“ ‘bitch,’ ” said it was an isolated incident, and acknowledged that
his reaction was inappropriate.
3
When DCFS expressed concern about father’s marijuana
abuse, father provided DCFS with a copy of his medical
marijuana card. Father obtained the medical marijuana
recommendation on August 6, 2019; it was set to expire on
August 4, 2020. The statement from the physician indicated that
father was informed “not to drive, operate heavy machinery or
engage in any activity that requires alertness while using
medical marijuana.” Father said he was pulled over earlier in
the year, arrested for possession of marijuana for sale, and
ordered to complete a drug treatment program.
Father explained he used marijuana for the past two to
three years to manage back and foot pain. He kept the
marijuana stored inside a backpack that he left in the car.
Father admitted he smoked marijuana in the parking lot outside
the family home in the mornings around 6:00 a.m. prior to
driving the children to school. Father stated he sobered up before
transporting the children, explaining, “ ‘I don’t get stupid high in
the morning, just enough to stop the pain.’ ” Father denied using
any other drugs. When DCFS pressed the point that father
transported the children while under the influence of marijuana,
father agreed to refrain from smoking it in the mornings until
after he dropped off the children and to submit to on-demand
drug testing.
Mother and father stated they understood the DCFS safety
concerns and agreed to a safety plan that included drug testing
and not smoking marijuana before transporting the children in a
car.
2. Second Safety Plan
On October 11, 2019, three days after the parents signed
the first safety plan, father tested positive for methamphetamine,
amphetamine, and marijuana. Father adamantly denied ever
using methamphetamine. He said he shared drug paraphernalia
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with his friends, and blamed his positive methamphetamine test
on his use of a dirty drug pipe.2 Mother stated she was unaware
of father’s methamphetamine use. She noted that D.M.
(daughter’s father) used drugs and she was able to notice a
difference in his behavior, but she did not observe such changes
in father.
The parents agreed to additional safety measures,
including having father move out of the family home for seven
days while DCFS further investigated his substance abuse.
On October 23, 2019, father tested positive for marijuana
but not methamphetamine. On October 28, 2019, DCFS sought a
warrant to remove son from father’s care. On October 29, 2019,
DCFS contacted mother and requested that the safety plan be
extended for an additional seven days. Mother refused, stating
the plan had been difficult on the family, and father had to sleep
in his car due to being homeless. Mother said father was the
main provider for the family, but she needed him to transport the
children to school and her to work. She did not believe that
father had done anything to harm the children.
Father also refused to extend the safety plan, claiming the
most recent drug test proved he was not a methamphetamine
addict. He planned to move back into the family home and said
he would only move out pursuant to a court order. Father
promised that he would only smoke marijuana at night and
refrain from driving the children to school after smoking
marijuana.
2 DCFS found that father’s methamphetamine levels were
high and his story was not plausible.
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3. Removal Order, and Section 300 Petition
On October 30, 2019, the court issued the warrant to
remove son from father’s custody.3 On October 31, 2019, DCFS
informed mother of the removal order. Mother reasserted that
father was not a methamphetamine addict, nor did he use
methamphetamine on a regular basis, and his clean test proved
he was not a drug addict. When DCFS informed mother that
father’s visits had to be monitored, she expressed disagreement.
Mother stated father did nothing wrong, deemed DCFS and court
intervention “ ‘unnecessary,’ ” and wanted father back inside the
family home.
On November 4, 2019, DCFS filed a petition alleging the
children came within the provisions of section 300, subdivision
(b)(1). The petition alleged that father’s history of and current
substance abuse endangered the children, and mother failed to
protect the children from father’s substance abuse, allowing him
to reside in the family home with unlimited access to them.
On November 5, 2019, the juvenile court found father to be
the presumed father of son, and D.M. to be the presumed father
of daughter. DCFS sought detention from parental care. The
juvenile court detained the children from, respectively, father and
D.M. The court released the children to mother under the
following conditions: (1) father was to reside outside the family
home; (2) father was not to transport the children in a car;
(3) mother was not to monitor father’s visits with the children;
(4) mother was to participate in family preservation services,
ALANON meetings, and individual counseling; and (5) mother
3 The court did not issue a removal order for daughter
because father was not her parent.
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was to cooperate with DCFS’s unannounced home visits to check
on the safety of the children.4
4. Post Detention Investigation
Following son’s removal from father’s care, father moved
out of the family home and into the home of the paternal great-
grandparents. On January 9, 2020, father was re-interviewed at
a DCFS office. In a report filed with juvenile court, the social
worker noticed that father smelled of marijuana and appeared to
be under the influence of drugs. When confronted, father
admitted to smoking marijuana prior to the 11:00 a.m. interview.
He also admitted that he drove his car to the interview. Father
said he drank four beers the previous day. DCFS asked and
father agreed to submit to an on-demand drug test that day, but
later that day, he falsely claimed the drug testing location was
closed. Father submitted to a drug test the following day, testing
positive for methamphetamine, amphetamine, and marijuana.
Regarding his marijuana use, father stated he started
smoking marijuana at age 19 (he was then 27 years old) and
began smoking marijuana daily about four years ago after
twisting his ankle at work. Father noted he smoked marijuana
three times a day, totaling 3.5 grams and costing him between
$20 and $30 per day. He always smoked marijuana in the
mornings and took a two-hour nap before driving the children to
school. He claimed he never felt “ ‘under the influence’ ” while
transporting the children to school.
Father told DCFS that he did not want to stop smoking
marijuana. He stated, “ ‘I don’t like feeling in my five senses. I
have been smoking so long and I feel happy when I smoke. I
have tried to quit for like 2 or 3 days in the past and I don’t like
4 The juvenile court ordered no services for D.M. whose
whereabouts were unknown. D.M. is not a party to this appeal.
7
how I feel. I get grumpy and stressed. I have tried reducing
right now. I’m only smoking once per day because I want to go
back with my kids.’ ”
Father minimized his arrest for possession of marijuana
with intent to sell, stating that he purchased one pound of
marijuana for personal use. Father was in the process of
completing a criminal court drug diversion program.
Father also admitted he consumed alcohol weekly, stating
“I drink about 6 beers on Saturdays but I don’t get drunk.”
Father denied methamphetamine use, claiming he “only sniffed
meth two times” when he was 16 years old. Father believed he
tested positive for methamphetamine because he used his friend’s
“dirty pipe” while smoking marijuana at work. According to
father, he was aware his friend smoked methamphetamine, and
during the six days leading up to his positive methamphetamine
test, father had used his friend’s methamphetamine drug pipe at
work to smoke marijuana.
DCFS attached to its report father’s drug test results that
showed a positive test for methamphetamine, amphetamine, and
marijuana on October 11, 2019; tested positive for marijuana on
October 23, 2019; failed to show on January 9, 2020; and tested
positive for methamphetamine, amphetamine, and marijuana on
January 10, 2020.
5. Jurisdiction/Disposition Hearing
The combined jurisdiction/disposition hearing took place on
January 29, 2020. Mother appeared at the hearing; father did
not. The court received into evidence various DCFS reports with
attachments. Mother also submitted an enrollment letter from
her individual counseling program.
Counsel for DCFS, joined by counsel for the children,
requested the petition be sustained as pled. Counsel for mother,
joined by counsel for father, asked the court to dismiss the section
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300 petition and impose informal supervision under section 360,
subdivision (b).
The juvenile court sustained the petition as pled, finding
father’s substance abuse issues and mother’s failure to protect
placed the children at substantial risk of serious physical harm
pursuant to section 300, subdivision (b)(1). The juvenile court
expressed concern about father’s drug abuse, the storage of the
marijuana inside a backpack in the car used to transport the
children to school, and mother’s knowledge that father
transported the children shortly after smoking marijuana.
The juvenile court sustained the petition as follows:
“(b-1): The children[’s] mother[’s] male
companion, [father], father of [son], has a history of
substance abuse, and is a current abuser of
amphetamine, methamphetamine and marijuana,
which renders . . . father incapable of providing
regular care for [son]. On 10/11/19 . . . father had a
positive toxicology screen for amphetamine,
methamphetamine, and marijuana. On 10/23/19 . . .
father had a positive toxicology screen for marijuana.
On prior occasions . . . father was under the influence
of amphetamine, methamphetamine and marijuana
while [son] was in the father’s care and supervision.
The [son] is of such a young age, requiring constant
care and supervision, and . . . father’s substance
abuse interferes with providing regular care and
supervision of the child. The mother failed to protect
the children when she knew of . . . father’s substance
abuse. The mother allowed . . . father to reside in the
children’s home and have unlimited access to the
children. [Father]’s substance abuse, and the
mother’s failure to protect the children, endangers
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the children’s physical health and safety, and places
the children at risk of serious physical harm, damage
and failure to protect.”
After sustaining the petition, the juvenile court proceeded
to disposition. It declared the children dependents of the court
and ordered them removed from their respective fathers’ care
with monitored visitation. The children remained in mother’s
care, and she was ordered to participate in family maintenance
services, including ALANON meetings and individual counseling
services.
Mother timely appealed.
DISCUSSION
Mother argues that there was insufficient evidence to
support the court’s jurisdictional finding that mother failed to
protect the children from father’s substance abuse, or that father
was a substance abuser.
1. Applicable Law
The juvenile court found the children dependent under
section 300, subdivision (b)(1). That subdivision provides, in
pertinent part, that a child may be declared dependent if 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 or guardian to adequately
supervise or protect the child, or the willful or negligent failure of
the child’s parent or guardian to adequately supervise or protect
the child from the conduct of the custodian with whom the child
has been left. . . .” (§ 300, subd. (b)(1).) “A jurisdictional finding
under section 300, subdivision (b)(1), requires [the agency] to
demonstrate the following three elements by a preponderance of
the evidence: (1) neglectful conduct, failure, or inability by the
parent; (2) causation; and (3) serious physical harm or illness or a
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substantial risk of serious physical harm or illness.” (In re L.W.
(2019) 32 Cal.App.5th 840, 848.)
In making its section 300, subdivision (b)(1) finding, the
court applied section 355.1, which states: “Where the court finds,
based upon competent professional evidence, that an injury,
injuries, or detrimental condition sustained by a minor is of a
nature as would ordinarily not be sustained except as the result
of the unreasonable or neglectful acts or omissions of either
parent, the guardian, or other person who has the care or custody
of the minor, that finding shall be prima facie evidence that the
minor is a person described by subdivision (a), (b), or (d) of
Section 300.”
“We review the juvenile court’s jurisdictional findings for
sufficiency of the evidence. We review the record to determine
whether there is any substantial evidence to support the juvenile
court’s conclusions, and we resolve all conflicts and make all
reasonable inferences from the evidence to uphold the court’s
orders, if possible. However, substantial evidence is not
synonymous with any evidence. . . . [W]hile substantial evidence
may consist of inferences, such inferences must be a product of
logic and reason and must rest on the evidence [citation];
inferences that are the result of mere speculation or conjecture
cannot support a finding.” (In re Drake M. (2012)
211 Cal.App.4th 754, 763 (internal quotation marks and citations
omitted).)
2. Substantial Evidence Supports Jurisdiction
As DCFS points out, mother claims she “does not challenge
the adjudicatory findings” made against father, i.e. the findings
that father’s history of substance abuse and current abuse of
methamphetamine and marijuana rendered him incapable of
caring for son. Almost immediately, though, mother does an
about face and argues that there “was no substantial evidence
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father was a “substance abuser.”5 We treat her appeal as raising
both issues.
We reject mother’s argument that insufficient evidence
supports the court’s finding of substance abuse. Father
habitually drove his children to school shortly after smoking
marijuana. His car smelled strongly of marijuana, and he
admittedly kept marijuana in his car and on his person at all
times. Even after he promised to reduce his marijuana intake
when DCFS became involved, he arrived at a meeting with DCFS
under the influence and smelling of marijuana. He had driven to
the meeting. On three occasions, father tested positive for
marijuana, and on two occasions, for methamphetamine and
amphetamine. Father was also arrested for possession with
intent to sell marijuana (when he was found carrying a pound of
it on his person) and was still in the process of completing a drug
program at time of the jurisdiction hearing. Father did not want
to stop his drug use. He told DCFS he did not like how he felt
when off marijuana, and was grumpy and stressed when not
using. Father was dependent on a drug that compromised his
ability to parent and particularly endangered the children he
regularly transported to and from school shortly after smoking it.
Thus, there was substantial evidence of father’s substance abuse.
(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”]; In re Christopher R. (2014) 225 Cal.App.4th 1210,
1218-1219.)
5 Mother’s subheading for her argument is: “There was no
substantial evidence [father] was a ‘substance abuser’ and
therefore, the finding that mother ‘failed to protect the children
when she knew of [father’s] substance abuse’ should be reversed.”
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We also conclude substantial evidence supported the
juvenile court’s finding that mother failed to protect the children
from father’s substance abuse. Mother was aware father smoked
marijuana shortly before he drove the children to school. Mother
told DCFS father “will smoke at around 6:00 AM and takes the
children to school at around 7:30 AM.” When asked by DCFS
whether she had concerns about father driving under the
influence with the children, mother responded that she was “not
too concerned because she thinks by that time he is fine.”
Mother, whose workday started around 4:30 a.m., did not explain
how she knew that father was not under the influence when he
drove the children to school. Mother expressed disbelief when
father tested positive for methamphetamine, denied he was a
drug addict, later refused to make father move out of the family
home unless there was a court order, and deemed juvenile court
intervention “ ‘unnecessary.’ ” The evidence supports the court’s
conclusion that mother knew of the substance abuse and allowed
her children to be regularly exposed to it.
Mother asserts there “was no evidence [father] was the sole
care provider for the children when he was under the influence of
marijuana” or that father was under the influence of marijuana
when he drove the children to school. We disagree. The
undisputed evidence is that father (without accompaniment from
another caregiver) drove the children to school an hour and a half
after smoking marijuana. The car smelled strongly of marijuana
when he dropped off the children. And on one occasion, father
assaulted his five-year-old son by slapping him on the face,
leaving a red mark. Father also appeared to be under the
influence of drugs at an 11:00 a.m. meeting at a DCFS office, and
admitted to smoking before driving himself there. The juvenile
court could have reasonably concluded from this evidence that
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father routinely drove the children under the influence of
marijuana, placing them in danger.
Mother argues that by the time of the jurisdictional
hearing, there was no risk of harm to the children because father
had been living elsewhere for three months and mother was
compliant with DCFS’s requests and the court’s orders. That the
parents complied with court orders for three months does not
undercut the substantial evidence that supported the juvenile
court’s finding of risk of harm. The “court need not wait until a
child is seriously abused or injured to assume jurisdiction and
take steps necessary to protect the child. The court may consider
past events in deciding whether a child presently needs the
court's protection. 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., supra, 225 Cal.App.4th at
p. 1216 [citations and internal quotation marks omitted].)
DISPOSITION
The court’s jurisdictional finding and dispositional order
are affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
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