Filed 11/14/23 In re E.L. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re E.L. et al., Persons Coming B325720
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. Nos.
DEPARTMENT OF CHILDREN 22LJJP00339A,
AND FAMILY SERVICES, 22LJJP00339B
Plaintiff and Respondent,
v.
S.K. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Donald A. Buddle, Jr., Judge. Affirmed.
Ernesto Paz Rey, under appointment by the Court
of Appeal, for Defendant and Appellant S.K.
Karen B. Stalter, under appointment by the Court
of Appeal, for Defendant and Appellant T.L.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
The juvenile court took jurisdiction over E.L. and R.K.
after finding their mother has substance abuse issues and used
marijuana while pregnant. The court declined to remove the
children from their parents’ custody. However, it included in
the parents’ case plans random drug testing, parenting classes,
and domestic violence counseling. On appeal, mother challenges
the court’s jurisdictional findings and dispositional order that she
participate in domestic violence counseling. Father challenges
the court’s inclusion in his case plan of domestic violence
counseling, random drug testing, and parenting classes.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Investigation
Mother and father have two children together, E.L. (born
in November 2015) and R.K. (born in May 2022). Both children
have serious medical conditions. E.L. was diagnosed with autism
and ADHD. R.K. was born with a cleft palate, duplication in
chromosome 22, and microcephaly.
As a result of R.K.’s medical conditions, she was
hospitalized for two months after her birth and needs to be fed
through a gastrostomy tube. According to hospital staff, mother
went long periods without visiting R.K., and the staff had trouble
contacting mother via phone. During one visit with R.K., a nurse
observed mother acting “erratic[ally]” and seemingly “under the
influence” of a drug. Mother reportedly ripped open her shirt
in public and said she wanted to breastfeed the child.
2
In June 2022—about a month after mother gave birth
to R.K.—the Los Angeles County Department of Children and
Family Services (the Department) received a report that the
child’s meconium had tested “presumptive[ly] positive” for
methamphetamine, cocaine, and tetrahydrocannabinol (THC).
A “presumptive positive” result “means that the screening
method is positive, but the test needs to be run by a confirmatory
method before being finalized.” Mother told a hospital social
worker she was concerned she may have used marijuana
that was “laced” with something else.
2. Mother’s substance abuse
Despite the Department’s many efforts, it was not able to
interview mother until July 26, 2022. Mother denied knowingly
using any drugs while pregnant. She admitted she had taken
“CBD” capsules for nausea and lethargy, but she claimed she
had not known she was pregnant at the time. Mother speculated
that her “workout medicine” may have caused the positive result
for methamphetamine. During a later interview, mother told
the Department she “ ‘smoked weed one or two times’ ” before
she knew she was pregnant.
Mother revealed she has a significant history of substance
abuse. She said she met father because they “ ‘use[d] to use
together.’ ” According to mother, she became addicted to pain
medication, which led her to start using methamphetamine and
heroin. Between 2013 and 2014, mother suffered seven criminal
convictions, most of which involved controlled substances.
Mother said she eventually went to rehab, had been sober for
more than six years, and regularly attends Narcotics Anonymous
meetings.
3
Father told the Department mother used “CBD Gummies”
before realizing she was pregnant. He denied using any drugs or
alcohol. Father initially agreed to drug test for the Department,
but he later refused. The Department discovered father had been
convicted of possession of a controlled substance for sale in 2014,
and inflicting corporal injury on a spouse in 2001.
The hospital performed confirmation tests on R.K.’s
meconium, which came back positive for THC, but negative for
methamphetamine and cocaine. The hospital’s administrative
director told the Department presumptive screenings may
produce false positives, but confirmatory tests are reliable.
3. Domestic violence
During its investigation, the Department learned father
had been arrested for domestic violence in February 2021.
According to the police report of the incident, mother thought
father was going to hit her during an argument, so she covered
her face with her arms. Father grabbed mother’s forearm and
pushed her several feet, until she fell over the side of a sofa.
Father hovered over mother while she lay on the couch. Mother
ran out of the room and called the police. Mother had bruises
on her forearm. She told an officer there were “numerous” prior
incidents of domestic violence between her and father. Mother
requested and received an emergency protective order against
father.
Despite the police report, mother and father told the
Department there was no domestic violence in their relationship.
When asked why she called the police in February 2021,
mother said she only wanted father to leave the house. Mother
suggested E.L., not father, had caused the bruises on her arm.
4
4. Dependency proceedings
The Department filed a petition asserting E.L. and R.K. are
persons described by Welfare and Institutions Code section 300.1
The petition alleged R.K. was born “suffering from a detrimental
and endangering condition” of “presumptive positive toxicology
screens for methamphetamine, cocaine, and [THC].” It also
alleged mother has a history of substance abuse and is a current
abuser of methamphetamine, cocaine, and THC, which renders
her unable to provide regular care of the children. As to father,
the petition alleged his criminal history endangers the children
and places them at risk of harm. It also alleged father and
mother have a history of domestic violence.
At the detention hearing, the court found a prima facie case
the children are persons described by section 300. It released
the children to their parents’ custody on the condition that the
parents drug test. Father did not object.
Mother tested negative for drugs three times between
September and November 2022. She was a “no show” at a test
on November 17, 2022. Father was a “no show” at every test.
The juvenile court held a combined jurisdiction and
disposition hearing on November 29, 2022. Mother presented
evidence that she had completed a “Happy Heart Parenting” class
and been accepted into a six-month outpatient drug program.
After considering the evidence, the court struck from the
petition the allegations related to cocaine and methamphetamine.
As amended, the court sustained the counts concerning mother’s
substance abuse and R.K.’s positive toxicology screen for THC.
1 Undesignated statutory references are to the Welfare and
Institutions Code.
5
The court dismissed the counts related to domestic violence and
father’s criminal history.
As to disposition, the court declared the children
dependents and released them to their parents’ custody. Over
the parents’ objections, the court included in their case plans
random drug testing, domestic violence counseling, and parenting
classes. The court ordered that, once each parent provides four
consecutive negative drug tests, the Department may test them
only on suspicion of drug use.
Mother and father timely appealed.
DISCUSSION
1. The court did not err in taking jurisdiction over
the children
Mother argues the juvenile court erred in finding the
children are persons described by section 300.2
Generally, a parent’s substance abuse, “without more,”
is an insufficient basis to assert dependency jurisdiction.
(In re L.W. (2019) 32 Cal.App.5th 840, 849 (L.W.).) Rather,
the Department must show the parent’s substance abuse harms
the child or places the child at substantial risk of harm. (In re
Drake M. (2012) 211 Cal.App.4th 754, 766–767 (Drake M.),
disapproved of on other grounds in In re D.P. (2023) 14 Cal.5th
266, 282–283; see L.W., at p. 850 [mother engaged in dangerous
behavior due to substance abuse placing child at risk of harm].)
However, when a child is “ ‘of such tender years that the absence
of adequate supervision and care poses an inherent risk to their
physical health and safety,’ ” a “finding of substance abuse is
prima facie evidence of the inability of a parent or guardian to
2 Father joins mother’s argument.
6
provide regular care resulting in a substantial risk of physical
harm.” (Drake M., at pp. 766–767.)
Mother seems to concede there is substantial evidence
that she has a history of substance abuse issues. She also
seems to concede that, given her children’s young ages, there is
a presumption her substance abuse poses a risk to their safety.3
Nevertheless, she argues the juvenile court was compelled to find
she overcame that presumption. In support, mother points to
evidence that she repeatedly tested negative for drugs, completed
an online parenting program, enrolled in an outpatient drug
program, regularly attended Narcotics Anonymous meetings, and
was meeting her children’s needs. Mother suggests this evidence
shows she had fully resolved her substance abuse issues as of
the jurisdiction hearing.
As mother points out, because she had the burden to
overcome the presumption, “it is misleading to characterize
the . . . issue as whether substantial evidence supports the
judgment.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528,
disapproved of on other grounds by Conservatorship of O.B.
(2020) 9 Cal.5th 989, 1003, fn. 4.) Instead, the question on
appeal is whether “the evidence compels a finding in favor
of the appellant as a matter of law. [Citations.] Specifically,
the question becomes whether the appellant’s evidence was
(1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character
and weight as to leave no room for a judicial determination that
it was insufficient to support a finding.’ ” (Ibid.)
3 Although E.L. had turned seven years old a few weeks
before the jurisdiction hearing, mother does not argue he was
too old for the tender-years presumption to apply. Accordingly,
we do not consider the issue.
7
While mother’s efforts are commendable, the record does
not compel a finding in her favor as a matter of law. Although
mother tested negative for drugs several times, she was
a “no show” for the last test before the jurisdiction hearing.
The court could have inferred mother did not appear at the test
because she knew she would have tested positive. (See In re
Kadence P. (2015) 241 Cal.App.4th 1376, 1384 (Kadence P.)
[“a missed drug test, without adequate justification, is ‘properly
considered the equivalent of a positive test result’ ”].) From this,
the court reasonably could have found mother had not fully
resolved her substance abuse issues as of the jurisdiction
hearing, despite her participation in services.
Further supporting such a finding, the record shows
mother was not entirely forthcoming about the extent of her
past drug use. Mother initially told the Department she had
used only “CBD” pills while pregnant. However, she reportedly
told hospital staff she consumed marijuana that may have been
“laced” with another drug. Although mother later admitted to
the Department that she had smoked marijuana, the juvenile
court reasonably could have concluded mother had yet to
acknowledge fully the extent of her substance abuse, let alone
address it.
The record also shows R.K. and E.L. have medical
conditions that necessitate exceptional parental supervision
and support. R.K. was born with genetic conditions that require
she be fed through a gastrostomy tube, and E.L. had been
diagnosed with autism and ADHD. Given the seriousness of
these conditions, the court reasonably could have found any
continued substance abuse by mother would pose a particular
risk of harm to the children.
8
On this record, the court was not compelled to find mother
had overcome the presumption that her substance abuse issues
endangered her children’s safety. Accordingly, we reject her
argument that the juvenile court erred in taking jurisdiction
over the children.
2. The court’s disposition orders were not an abuse
of discretion
Mother and father argue the juvenile court abused its
discretion by including domestic violence counseling in their case
plans. Father separately argues the court abused its discretion
by including in his case plan random drug testing and a
parenting class.
“We review the juvenile court’s disposition case plan for an
abuse of discretion. ‘The juvenile court has broad discretion to
determine what would best serve and protect the child’s interests
and to fashion a dispositional order accordingly. On appeal,
this determination cannot be reversed absent a clear abuse of
discretion.’ ” (In re D.P. (2020) 44 Cal.App.5th 1058, 1071 (D.P.).)
“A court exceeds the limits of legal discretion if its determination
is arbitrary, capricious or patently absurd. The appropriate test
is whether the court exceeded the bounds of reason.” (L.W.,
supra, 32 Cal.App.5th at p. 851.)
“Section 362, subdivision (d) authorizes the juvenile court
to ‘direct any reasonable orders to the parents’ of a dependent
child as the court deems necessary and proper to ensure
appropriate care, supervision, custody, conduct, maintenance,
and support of the child.” (D.P., supra, 44 Cal.App.5th at p. 1071;
see also § 362, subd. (a).) “The order may include ‘a direction
to participate in a counseling or education program,’ provided
that the ‘program in which a parent or guardian is required to
9
participate shall be designed to eliminate those conditions that
led to the court’s finding that the child is a person described by
Section 300.’ ” (D.P., at p. 1071, quoting § 362, subd. (d).)
Nevertheless, “[t]he problem that the juvenile court seeks
to address need not be described in the sustained section 300
petition. [Citation.] In fact, there need not be a jurisdictional
finding as to the particular parent upon whom the court imposes
a dispositional order.” (In re Briana V. (2015) 236 Cal.App.4th
297, 311.) Thus, “the juvenile court is not limited to the content
of the sustained petition when it considers what dispositional
orders would be in the best interests of the children. [Citations.]
Instead, the court may consider the evidence as a whole.” (Ibid.)
a. Domestic violence counseling
Mother and father contend there is no evidence of ongoing
domestic violence between them. Therefore, they argue, the court
abused its discretion by including domestic violence counseling
in their case plans.
Contrary to the parents’ contentions, the record contains
sufficient evidence to support a finding that they have unresolved
domestic violence issues. In February 2021, mother told the
police that father had grabbed her by the arm and pushed her
during an argument, which caused bruising on her arm. The
violence was sufficiently severe that mother requested and
obtained an emergency protective order against father. Mother
also told the police there had been “numerous” prior incidents
of domestic violence with father. Despite this, both parents
insisted to the Department there had been no domestic violence
between them. The court reasonably could have determined that,
until mother and father acknowledge and address their past
domestic violence issues, similar incidents of violence are likely
10
to recur. (See In re L.O. (2021) 67 Cal.App.5th 227, 240 [finding
a risk that domestic violence would recur where the father failed
to acknowledge his past violent behavior]; In re Gabriel K. (2012)
203 Cal.App.4th 188, 197 [“One cannot correct a problem one fails
to acknowledge.”].)
We also reject the parents’ argument that the court’s
order was not designed to eliminate the basis for dependency.
Although the court found the parents’ domestic violence alone did
not warrant taking jurisdiction over the children, it reasonably
could have concluded any ongoing domestic violence would
present an obstacle to the resolution of mother’s substance abuse
issues. (See, e.g., Stern & Oehme, Increasing Safety for Battered
Women and Their Children: Creating A Privilege for Supervised
Visitation Intake Records (2007) 41 U. Rich. L.Rev. 499, 517
[there is a “well-established link between substance abuse and
domestic violence,” and victims may “ ‘self-medicate’ to deal with
the abuse”].) Given the logical connection between the parents’
domestic violence and mother’s substance abuse, we cannot say
the court’s order was arbitrary, capricious, or patently absurd.
The court did not abuse its discretion by ordering the parents
to participate in domestic violence counseling.
b. Drug testing
Father argues the juvenile court abused its discretion by
including random drug testing in his case plan. According to
father, testing was not warranted because there was “neither
an indication nor concern” that he was using drugs.
Contrary to father’s suggestions, the record contains
sufficient evidence to support a finding that he has unresolved
substance abuse issues. Father denied using drugs, but he
refused the Department’s request that he submit to a drug test.
11
More importantly, father failed to comply with the court’s order
that he drug test as a condition of the children being released
to his custody. The court reasonably could have inferred father
did not appear for the tests because he knew he would have
tested positive. (See Kadence P., supra, 241 Cal.App.4th at
p. 1384.)
The court also reasonably could have determined an order
requiring father to drug test would help eliminate the conditions
that led to dependency. Mother told the Department she had
used drugs with father in the past, and she suggested it was the
basis for the start of their relationship. Given this history, the
court reasonably could have concluded that, if father continues
to use drugs, it might hinder the resolution of mother’s substance
abuse issues.
Father’s reliance on In re Sergio C. (1999) 70 Cal.App.4th
957 and In re Basilio T. (1992) 4 Cal.App.4th 155, is misplaced.
In Sergio C., the court held it was an abuse of discretion to
require drug testing where the parent denied all involvement
with drugs and cooperated fully with the juvenile court’s orders.
(Sergio C., at p. 960.) In Basilio T., the court held it was an
abuse of discretion to include a substance abuse component in
the parents’ case plans based solely on the mother’s somewhat
unusual behavior and obsession with a “fortune-making
invention.” (Basilio T., at pp. 172–173.) Here, the record
contains far more support for the court’s order requiring father
to submit to drug testing. In contrast to Sergio C. and Basilio T.,
there is substantial evidence that father has a history of
substance use. Moreover, unlike the parents in those cases,
father refused to comply with the court’s order that he drug test,
which indicates his substance use is ongoing.
12
Father’s reliance on Drake M., supra, 211 Cal.App.4th 754,
is similarly misplaced. In that case, the juvenile court took
jurisdiction over a child based on the parents’ substance abuse
issues and the mother’s mental illness. (See id. at p. 770.) A
different panel of this court reversed the jurisdictional findings
concerning the father because there was no evidence he had
substance abuse issues, such as recurrent substance-related
legal problems. (Id. at pp. 767–768, 771.) This court also held
it was an abuse of discretion to require the father to submit to
drug testing because, under the circumstances, the order could
not reasonably be designed to eliminate the conditions that led
to dependency. (Id. at pp. 669–770.)
In contrast to Drake M., the record in this case supports
a finding that father has substance abuse issues. Father has
a relatively recent criminal conviction related to a controlled
substance, and his repeated refusal to drug test indicates his
substance use is ongoing. There is also a logical connection
between mother’s and father’s drug use, such that requiring
father to address his substance abuse issues reasonably could
be designed to eliminate the basis for dependency. Under
these circumstances, we cannot say the order was an abuse
of discretion.
c. Parenting classes
Relying on In re Jasmin C. (2003) 106 Cal.App.4th 177
(Jasmin C.), father argues the juvenile court abused its discretion
by including parenting classes in his case plan.
In Jasmin C., the juvenile court ordered the mother
to participate in parenting classes, despite the fact she was
nonoffending and had not engaged in any inappropriate behavior.
(Jasmin C., supra, 106 Cal.App.4th at p. 181.) The Court of
13
Appeal held the order was an abuse of discretion because it
“apparently was based on a rote assumption that mother could
not be an effective single parent without parenting classes,
something belied by common sense and experience in 21st-
century America.” (Id. at pp. 181–182.) The court explained
the “ ‘unnecessary responsibility of attending a class adds a
great deal of stress to an already tragic situation,’ ” and would
place a strain on the family. (Id. at p. 182.)
Unlike in Jasmin C., the record in this case supports
a finding that father engaged in inappropriate behavior. As
summarized above, there is sufficient evidence from which
the court reasonably could have found father has unresolved
domestic violence and substance abuse issues, both of which
might negatively affect his ability to care for his children.
Although father’s inappropriate behavior did not form the
basis for dependency, the court nevertheless could have found
father’s participation in parenting classes would be in the
children’s best interests.
14
DISPOSITION
We affirm the jurisdictional findings and disposition orders.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
ADAMS, J.
15