In re D.C. CA2/3

Filed 6/18/21 In re D.C. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE

In re D.C., a Person Coming Under the B309096
Juvenile Court Law.
_____________________________________
DEPARTMENT OF CHILDREN AND (Los Angeles County
FAMILY SERVICES, Super. Ct. No. 20CCJP04591A)

Plaintiff and Respondent,

v.

DERICK C.,

Defendant and Appellant.

APPEAL from findings and order of the Superior Court of
Los Angeles County, Debra R. Archuleta, Judge. Affirmed.
Gina Zaragoza, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel for Plaintiff and Respondent.
_________________________
 Derick C., Sr. (father) appeals jurisdictional and
dispositional findings and orders as to his son, Derick C., Jr.
(Derick). Derick was declared a juvenile court dependent and
removed from his parents’ custody after his mother, S.H.
(mother), suffered a drug overdose. Although father does not
challenge the juvenile court’s findings that mother’s substance
abuse put Derick at risk of harm, he contends there was not
substantial evidence that he failed to protect Derick, and the
juvenile court abused its discretion by removing Derick from
father’s custody and requiring father’s visits to be monitored.
We affirm. As we discuss, there was substantial evidence
that father was aware that mother was taking more narcotics
than she had been prescribed and, in fact, that father provided
mother with additional narcotics. There also was substantial
evidence that father himself smoked marijuana daily, used
alcohol regularly, refused to drug test, and engaged in domestic
violence with his romantic partners, including mother. Under
these circumstances, the juvenile court acted well within its
discretion in finding that father failed to protect Derick, ordering
Derick removed from father’s physical custody, and limiting
father to monitored visits.
FACTUAL AND PROCEDURAL BACKGROUND
Derick, who was born in May 2008, is the child of mother
and father, who live separately. Prior to the events that gave rise
to this appeal, Derick lived with mother and his 20-year-old half-
sister, Jordyn.
A. Prior Child Welfare History
In 2014, the Los Angeles County Department of Children
and Family Services (DCFS) received a report that six-year-old
Derick and his five-year-old cousin had been left home alone.

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Mother said she had left the children with father while she took
her two older children to a Christmas party. The allegation was
substantiated for neglect by father.
In 2016, Derick told his teacher that father had hit him
with a belt. Derick said father often disciplined him with a belt,
father and mother hit each other, and he was afraid of father.
The allegations of physical abuse were investigated but were
determined to be inconclusive.
In July 2020, DCFS investigated a report of domestic
violence between father and the mother of his one-year-old
daughter. That investigation was closed as inconclusive.
B. Mother’s August 2020 Drug Overdose
On August 15, 2020, a neighbor found mother unresponsive
in her parked car next to bottles of hydrocodone (Norco) and
alcohol.1 When paramedics arrived, mother’s pupils were
constricted and she was having difficulty breathing. The
paramedics administered Narcan and brought mother to the
hospital, where she tested positive for amphetamines,
methamphetamines, and opiates.
The hospital spoke to Derick’s adult sister, Jordyn, who
reported that mother had been prescribed hydrocodone for
shoulder pain, which has been a “ ‘problem lately.’ ” Jordyn said
mother had been getting additional hydrocodone from father and
drank a bottle of tequila every other day. Mother sometimes
“ ‘h[u]ng out’ ” in the parking garage; Jordyn did not know why.
She denied that mother was suicidal, and suspected an accidental
overdose.

1 All subsequent dates are in 2020 unless otherwise
indicated.

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 Mother told a hospital social worker that she did not recall
what had happened before she became unresponsive. She
initially acknowledged taking only one hydrocodone, “but then
admitted to more but won’t state how much.” Mother also
admitted using Ecstasy two to three times per week. When
asked why she spent time in her car, she said it was the only
place she could have time to herself.
Mother was discharged home on August 17. The discharge
papers indicated that her principal diagnoses were drug overdose
and moderate opiate use disorder, and her secondary diagnoses
were acute respiratory failure, severe alcohol use disorder, and
hypertension.
C. Detention
DCFS filed a juvenile dependency petition on September 1,
2020. As subsequently sustained, the petition alleged that
Derick was a dependent child pursuant to Welfare and
Institutions Code2 section 300, subdivision (b) because mother
had a history of substance abuse and was a current user of
methamphetamine, amphetamines, opioids, Ecstasy, and alcohol,
which rendered her unable to provide Derick with regular care
and supervision, and father knew of mother’s substance abuse
and failed to protect Derick.3

2 All subsequent statutory references are to the Welfare and
Institutions Code.
3 In a separate count, the petition also alleged that father
had a history of substance abuse and was a current abuser of
marijuana and alcohol, which rendered him unable to provide
Derick with regular care and supervision. The juvenile court
dismissed that count on September 28.

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 On September 4, 2020, Derick was detained from mother
and father and placed with his maternal grandmother. The court
permitted both parents to have monitored visits with Derick, and
said father could have unmonitored visits after he submitted to
two drug tests that either were negative or showed decreasing
levels of marijuana use.
D. Jurisdiction and Disposition Report
Mother told a children’s social worker (CSW) that she had
been taking hydrocodone for severe menstrual cramps for the
past five or six years. She admitted using Ecstasy, a
stimulant/psychedelic, once or twice a week for the past seven or
eight months, and drinking alcohol about once per week. She did
not believe she had a substance abuse problem, and she denied
ever having been in drug rehabilitation or suffering a drug
overdose. She could not recall the August 15 overdose incident.
Mother initially told the CSW she was not romantically
involved with father, but later said she was not sure. She said
Derick saw father nearly every day.
Father said mother had taken prescription medication
since he met her 13 years earlier. He estimated that she was
prescribed 45 pills each month and took two pills per day. He
denied giving mother any additional pills, but he said his
grandmother, with whom he lived, did. Father denied knowing
that mother had used Ecstasy, but said she “probably went out
with some friends and tried something.” He did not appear
concerned about mother’s drug use, stating, “ ‘everyone tries stuff
once.’ ” He knew mother had passed out before being
hospitalized, which he said had happened at least once before.
Father said he and mother no longer had a romantic
relationship, but they got along well, looked out for each other,

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and sometimes spent the night together. At the time of the
interview, he said mother was on her way over to his house
because she missed him.
Father admitted smoking marijuana every day, and said he
consumed alcohol whenever he had company. The CSW detected
a “strong odor” of marijuana or cigarettes in father’s home, and
found an empty alcohol bottle and a bong in father’s bedroom.
Father said he was not willing to drug test.
Father admitted having a history of domestic violence with
mother and a criminal history related to welfare fraud and grand
theft, for which he served 10 years in prison. Criminal history
records showed father also had been convicted of misdemeanor
spousal battery and misdemeanor driving under the influence.
Police call records indicated many calls for service to
mother’s home between May 2019 and June 2020 for domestic
disturbances involving father. On November 19, 2019, police
received a report that father was “under the influence of [an]
unk[nown] narco[tic]” and was causing a disturbance; on April
13, 2020, police were called to mother’s home because father
reportedly had threatened mother with a knife and attempted to
run mother over with his car; on May 26, 2020, father reportedly
assaulted and attempted to choke mother; on July 6, 2020, it was
reported that father slashed the tires on mother’s car and
attempted to break a window; and on August 21, 2020, police
received a report that father was at mother’s home and was
“trying to fight with her.”
The maternal grandmother reported that Derick had a good
relationship with both his mother and father. She was concerned
about mother’s substance use and believed mother had become
dependent on the pain medication she took for severe menstrual

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cramps, fibroids, and a shoulder injury. Grandmother said
mother had been in an outpatient drug rehabilitation program in
2018 or 2019, and that Derick reported having seen father give
mother pills. Grandmother said mother and father had been in a
relationship in the past, but “ ‘not so much now.’ ” She was
concerned about mother and father arguing in front of Derick,
which she knew affected him negatively.
Mother agreed to drug test on August 19 but did not give a
sample, reportedly because she was not able to produce enough
urine. Mother failed to appear for a drug test the following day.
E. Jurisdiction and Disposition Hearing
At the September 28 jurisdiction/disposition hearing,
Derick’s counsel and DCFS urged the court to sustain the
allegation of the petition, noting that mother appeared to be
abusing hydrocodone, Ecstasy, and alcohol, and that father was
aware of mother’s drug use and may have been providing mother
with additional hydrocodone. Mother and father each asked that
the petition be dismissed as to them.
The court sustained the allegation of the petition alleging
mother’s drug use and father’s failure to protect. The court found
mother’s substance abuse “is a long and ongoing situation,” and
father “on some level is a co-conspirator, if you will.” It
explained: “It’s known to all parties this is more than just a
prescription drug issue. This has gone over the line, and it
appears to the court there was actual substance abuse. . . .
[C]oupled with the alcohol abuse[,] this clearly is a situation
where the court believes the child is at substantial risk of harm
being placed with either parent.”
As to disposition, the court ordered Derick removed from
mother and father and placed with the maternal grandmother.

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Father was ordered to submit to random or on-demand drug
tests. The court said it would consider releasing Derick to father
in the future, but it “does not want a bong in plain sight for a 12-
year-old young man to have to see, [and] although I understand
marijuana is legalized, this court has not received sufficient
paperwork to indicate that [father] has been testing and has [not]
shown the decreasing levels [of marijuana use] that he needed to
show to this court. [¶] If he’s serious about getting his son back,
he will go and test and show decreasing level[s].” The court
ordered mother’s and father’s visits with Derick to be monitored,
but said that if it “gets information that [father’s] marijuana
levels are decreasing and with [Derick’s] concurrence, the court
would be willing to liberalize [father’s visits] to unmonitored.”
Father timely appealed from the September 28 findings
and orders.
DISCUSSION
Father contends (1) substantial evidence did not support
the juvenile court’s finding that he failed to protect Derick from
mother’s drug abuse; (2) the juvenile court abused its discretion
by removing Derick from father’s custody because there was not
substantial evidence that Derick would be at risk of harm in
father’s home; and (3) the juvenile court abused its discretion by
limiting father to monitored visits with Derick.
I.
The Failure-to-Protect Finding
Was Supported by Substantial Evidence
Section 300, subdivision (b), provides that a child is within
the jurisdiction of the juvenile court if “[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 the failure or inability of

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his or her parent . . . to adequately supervise or protect the
child.”
We review the juvenile court’s jurisdictional findings for
substantial evidence. “ ‘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.” ’ ” (In re I.J. (2013) 56 Cal.4th 766, 773.)
“ ‘ “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. [Citations.]” ’ ” (Ibid.)
There was abundant evidence in the present case that
mother was abusing prescription and nonprescription drugs. By
her own admission, mother had been taking prescription
hydrocodone for many years, and her adult daughter Jordyn said
mother recently had been taking more hydrocodone than she was
prescribed. Jordyn also reported that mother was a heavy
alcohol user, consuming a half a bottle of tequila daily, and
mother admitted that she had been using Ecstasy for the last six
or seven months. Mother’s drug use resulted in her August 15
overdose, which required emergency medical intervention and a
two-day hospital stay.
Although father appears to concede there was substantial
evidence of mother’s substance abuse, he urges, pointing to his
own statements that he had not provided mother with
hydrocodone or seen her use illicit drugs, that there was
insufficient evidence that he knew of her substance abuse or

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failed to protect Derick from it. We do not agree. Although
father denied knowing of mother’s substance abuse, there was
substantial evidence to the contrary. Father admitted being
aware both of mother’s long-term use of prescription hydrocodone
and that mother sought out additional hydrocodone when she ran
out of what she was prescribed. There was, moreover, evidence
that father was mother’s source for additional hydrocodone:
Jordyn said father gave mother hydrocodone, and Derick told his
grandmother that he saw father give mother pills. Father
himself admitted that mother got additional hydrocodone from
his grandmother, for whom he acted as a full-time caregiver.
Moreover, although father denied knowing that mother had
begun using Ecstasy, the juvenile court reasonably could have
concluded otherwise. The evidence was undisputed that mother
and father continued to see each other regularly, and father said
they had an ongoing sexual relationship. Father had intimate
knowledge of mother’s life, including how many hydrocodone she
was prescribed each month, the length of her menstrual cycle,
and that she suffered from fibrosis and a shoulder injury. In view
of father’s knowledge of these private details of mother’s life, the
juvenile court could reasonably have concluded that father also
was aware of mother’s drug use, and that he failed to protect
Derick from it.
II.
The Removal Finding Was Supported
by Substantial Evidence
Section 361, subdivisions (c) and (d) govern the removal of a
dependent child from his parents’ physical custody. As relevant
to father’s appellate claims, section 361, subdivision (d) provides:
“A dependent child shall not be taken from the physical custody

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of his or her parents . . . with whom the child did not reside at the
time the petition was initiated, unless the juvenile court finds
clear and convincing evidence that there would be a substantial
danger to the physical health, safety, protection, or physical or
emotional well-being of the child for the parent . . . to live with
the child or otherwise exercise the parent’s . . . right to physical
custody, and there are no reasonable means by which the child’s
physical and emotional health can be protected without removing
the child from the child’s parent’s . . . physical custody.”
“A removal order is proper if based on proof of parental
inability to provide proper care for the child and proof of a
potential detriment to the child if he or she [is in the physical
custody of] the parent. [Citation.] ‘The parent need not be
dangerous and the minor need not have been actually harmed
before removal is appropriate. The focus of the statute is on
averting harm to the child.’ [Citation.] The court may consider a
parent’s past conduct as well as present circumstances.
[Citation.]” (In re N.M. (2011) 197 Cal.App.4th 159, 169–170.)
Whether the conditions in the home present a risk of harm
to the child is a factual issue. We therefore apply the substantial
evidence test—that is, we review the record to determine whether
there is any substantial evidence to support the juvenile court’s
conclusions, resolving all conflicts and making all reasonable
inferences from the evidence in favor of upholding the juvenile
court’s orders. (In re Christopher R. (2014) 225 Cal.App.4th 1210,
1216.) In doing so, we take into account the clear and convincing
evidence standard—that is, we consider whether the record as a
whole contains substantial evidence from which a reasonable
trier of fact could have found potential detriment by clear and

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convincing evidence. (Conservatorship of O.B. (2020) 9 Cal.5th
989, 1005–1006.)
Father contends the juvenile court abused its discretion by
removing Derick from his custody because there was no
substantial evidence that living with father would have posed a
substantial risk of harm to Derick’s physical or emotional well-
being. We do not agree. As DCFS notes, a child is placed at
substantial risk of serious physical harm if he or she has ready
access to drugs and drug paraphernalia. (In re Kristin H. (1996)
46 Cal.App.4th 1635, 1651 [leaving drug paraphernalia within
child’s reach indicated a gross lack of attention to the child’s
welfare]; In re Rocco M. (1991) 1 Cal.App.4th 814, 824, abrogated
on other grounds in In re R.T. (2017) 3 Cal.5th 622, 627−630
[11–year–old subject to risk of harm if placed in home allowing
access to drugs].) In the present case, father admitted that he
used marijuana daily and drank alcohol regularly. Social
workers who visited father’s home observed a strong odor of
marijuana or cigarettes throughout the house and saw a bong
and an empty alcohol bottle in father’s bedroom. Father said he
was not willing to drug test, and he showed himself unwilling or
unable to stop or reduce his use. He also appeared unconcerned
by mother’s drug use, as evidenced by his willingness to provide
her with hydrocodone and his casual reaction—“ ‘everyone tries
stuff once’ ”—when he was told mother had been using Ecstasy.
We note, moreover, a troubling pattern of domestic violence
between father and his female partners, including, but not
limited to, mother. As other courts have noted, “[e]ven if a child
suffers no physical harm due to domestic violence, a ‘cycle of
violence between . . . parents constitute[s] a failure to protect [a
child] “from the substantial risk of encountering the violence and

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suffering serious physical harm or illness from it.” [Citations.]’
(In re T.V. (2013) 217 Cal.App.4th 126, 135.)” (In re V.L. (2020)
54 Cal.App.5th 147, 156.) When all of this evidence is viewed in
the light most favorable to DCFS, we conclude a reasonable trier
of fact could have found it highly probable that were Derick to be
placed with father, he would have ready access to drugs and drug
paraphernalia, and would be at substantial risk of harm by
exposure to domestic violence.
Father contends there were reasonable means by which
Derick’s physical and emotional health could have been protected
in father’s care, but we do not agree. As DCFS notes, father
refused to drug test, said he could not see himself participating in
services, and did not make himself available to DCFS after an
initial interview in August. Given father’s unwillingness to work
with DCFS or to participate in services, we can conceive of no
way DCFS could have protected Derick had he been placed in
father’s custody. The juvenile court therefore did not err in
removing Derick from father’s custody.
III.
The Juvenile Court Did Not Abuse its Discretion by
Ordering that Father’s Visits Be Monitored
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. (See also § 362, subd. (a).) Visitation between parents
and children shall be as frequent as possible, but “[n]o visitation
order shall jeopardize the safety of the child.” (§ 362.1, subd. (a).)
“ ‘The juvenile court has broad discretion to determine
what would best serve and protect the child’s interests and to

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fashion a dispositional order accordingly. On appeal, this
determination cannot be reversed absent a clear abuse of
discretion.’ (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474;
see also In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)”
(In re D.P. (2020) 44 Cal.App.5th 1058, 1071.)
Father contends that the juvenile court abused its
discretion by ordering that his visits with Derick be monitored.
We do not agree. As we have said, the juvenile court reasonably
was concerned about father’s drug use and domestic violence, and
specifically that Derick might have access to drugs or drug
paraphernalia in father’s home. It therefore ordered that father
could have unmonitored visitation with Derick only after he
submitted to two drug tests that either were negative or showed
decreasing levels of marijuana. In light of father’s admitted daily
marijuana use, conditioning unmonitored visits on father’s ability
to demonstrate that he was abstaining from marijuana or
decreasing his marijuana use was reasonably calculated to keep
Derick safe and was not an abuse of discretion.

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 DISPOSITION
The jurisdictional and dispositional findings and order are
affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

We concur:

EGERTON, J.

THOMAS, J.*

* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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