In re Maribel R. CA2/5

Filed 7/13/21 In re Maribel R. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE

In re MARIBEL R., a Person B308928
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 20CCJP04999)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

MARCOS R.,

Defendant and Appellant.
 APPEAL from an order of the Superior Court of Los
Angeles County, Nichelle L. Blackwell, Judge Pro Tempore.
Affirmed.
Christine E. Johnson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Kimberly Roura, Senior Deputy
Counsel, for Plaintiff and Respondent.
_______________________________________

Marcos R. (father) challenges the juvenile court’s order
declaring Maribel R. (daughter) a dependent under Welfare and
Institutions Code section 300, subdivision (b)(1), and removing
her from parental custody under section 361, subdivision (c).1
Respondent Los Angeles County Department of Children and
Family Services (Department) contends the appealed
jurisdictional finding and removal order are supported by
substantial evidence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Consistent with our standard of review, we state the facts
in the light most favorable to the juvenile court’s findings,
resolving all conflicts and drawing all reasonable inferences to
uphold the court’s order, if possible. (In re R.T. (2017) 3 Cal.5th
622, 633.)

1 All statutory references are to the Welfare and
Institutions Code, unless stated otherwise.

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 Daughter was born in September 2020. A Department
social worker interviewed L.R. (mother)2 in the hospital following
the birth. Mother reported that she and father met at a
Narcotics Anonymous meeting about one year ago. Mother and
father used methamphetamine together in the past, and father
knew she used methamphetamine during her pregnancy.
According to mother, she used alcohol and marijuana, but
her main addiction was methamphetamine. She used
methamphetamine every day for a year and a half, but she
enrolled in a 30-day rehabilitation treatment facility and stopped
using methamphetamine when she learned in January 2020 that
she was pregnant. Mother tested positive for methamphetamine
during prenatal exams in January 2020 and July 2020. Mother
admitted relapsing for a couple of days in June 2020, but denied
any subsequent methamphetamine use.
The social worker also interviewed Father the same day.
Father, 27 years old at the time, gave inconsistent information
about his drug use. He initially reported daily alcohol and
methamphetamine use beginning at age 13, and that he last used
methamphetamine 7 months earlier. His heavy alcohol use
placed him at risk of liver failure. Paternal grandmother kicked
him out of her home because of his drinking and because he
threw an inflatable horse at his nephew; she had a restraining
order against father. Father was living in a sober living facility
in November 2019, but he moved out of the facility to be with
mother, who was not willing to live at the facility because some
residents had severe mental health issues. Father could not
recall the name of the facility. Father denied having any mental

2Mother is not a party to this appeal. Mother failed to
reunify with her two older children, daughter’s half-siblings.

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health problems, but acknowledged lying to law enforcement to
avoid arrest, saying he wanted to harm himself. Mother and
father had moved to the Union Rescue Mission about one week
before daughter was born, and they would be allowed to stay for
90 days. In a later interview, father denied his previous
statements about substance use, instead claiming that he started
using at age 21, got help by age 23, and had only used on
weekends, not daily as previously reported.
The Department placed daughter on a hospital hold based
on concerns about mother’s history of drug use, including testing
positive for methamphetamine twice during her pregnancy, as
well as concerns about father’s substance abuse history and
possible domestic violence between mother and father. Mother
tested negative for drugs on September 21, 2020, but father’s test
was positive for marijuana.
At the detention hearing on September 25, 2021, father
argued there was no prima facie case to support detention and
there were no reasonable efforts to prevent removal. Father
proposed a safety plan whereby father would stay in the family
area of the shelter with daughter, while mother moved to the
singles area of the shelter. The court found a substantial risk of
detriment and reasonable efforts, based on daughter being a
newborn and concerns about father’s substance abuse. The court
ordered the Department to provide referrals for a full drug
program, random weekly drug testing, parenting classes, and
individual counseling.
Daughter was placed with paternal aunt G.R., who told the
social worker she found out father was using when he was 18
years old. According to G.R., father completed one inpatient
program about five years earlier, and a second inpatient program

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about two years earlier. G.R. avoided communicating with father
whenever possible. She found father to be disrespectful towards
paternal grandmother. G.R. was unsure about whether father
was currently using, pointing out that father appeared motivated
to regain custody of daughter, and father was currently living
with G.G., a different paternal aunt, on the condition that father
not use drugs.
Father had a prior arrest for possession of a controlled
substance in October 2017, when law enforcement found on
father “a small green-cellophane wrapper containing an off-white
crystalline substance resembling methamphetamine.” The
charge was dismissed in January 2018.
Prior to daughter’s birth and the Department’s
involvement, Mother had enrolled in a drug and alcohol program,
on August 2, 2020, and had participated in 8 sessions of
individual therapy by August 14, 2020. Mother acknowledged
that the Department’s involvement was because she is a
recovering addict and used drugs when she was not supposed to.
Father reported he enrolled in a substance abuse outpatient
program (Clinica Romero) in September 2020, but could not recall
the date of enrollment. He believed the Department’s
involvement was due to mother’s past.
According to a last-minute information report filed by the
Department on November 6, 2020, father was admitted to a
residential program on that same day, and was in a 10-day
quarantine period. The Department remained concerned that
father had a longstanding history of drug use, and although he
also had a history of enrolling in programs, he had yet to address
his substance abuse.

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 At the November 9, 2020 adjudication, mother entered a no
contest plea. Minor’s counsel argued that it was premature to
release daughter to father, and the allegation against father was
warranted based on father statements minimizing his substance
use and the fact that his substance use continued despite
participating in past programs. Father had not finished past
programs, and because father had only recently entered a new
residential program, it was premature to release the child to
Father. Father argued there was no evidence father was
currently using or abusing drugs, and it was speculative to find a
risk of harm based on his past history of drug use. Father asked
the court to return daughter to his custody, or alternatively grant
unmonitored visits. The Department emphasized the
inconsistencies in father’s statements to the social worker,
evidence of his past drug and alcohol use, and the need to ensure
the safety of the infant daughter. The court agreed with the
Department that father had been dishonest about his
longstanding history of drug use. It sustained the allegation
based on father’s history of substance use and abuse, and found
there were no reasonable means to ensure the daughter’s safety
without removing her from parental custody. The court ordered
reunification services and monitored visits for both parents.
Father appealed.

DISCUSSION

The purpose of section 300 “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

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emotional well-being of children who are at risk of that harm.” (§
300.2; see In re Giovanni F. (2010) 184 Cal.App.4th 594, 599.)
“At the first stage of dependency proceedings, the juvenile court
determines whether the child is subject to juvenile court
jurisdiction; [the Department] has the burden to prove
jurisdiction by a preponderance of the evidence.” (In re Yolanda
L. (2017) 7 Cal.App.5th 987, 992.) “At the second stage, the
juvenile court must decide where the child will live while under
juvenile court supervision; to support removal from parental
custody, [the Department] has the burden to prove by clear and
convincing evidence that there is a risk of substantial harm to the
child if returned home and the lack of reasonable means short of
removal to protect the child’s safety.” (Ibid.; see § 361, subd. (c);
In re D.P. (2020) 44 Cal.App.5th 1058, 1068.)

A. Jurisdictional finding against father3

Father contends there was insufficient evidence to support
the juvenile court’s jurisdictional finding that father’s use and

3 Daughter will remain a dependent of the juvenile court
regardless of the outcome of father’s appeal, because father does
not challenge the jurisdictional finding relating to mother, and
mother has not filed a separate appeal. (In re Briana V. (2015)
236 Cal.App.4th 297, 308.) We nevertheless exercise our
discretion and reach the merits of father’s challenge to the
jurisdictional finding against father, because it forms the basis
for the court’s order removing daughter from parental custody,
which father has also appealed. (In re D.P. (2015) 237
Cal.App.4th 911, 917; In re Christopher M. (2014) 228
Cal.App.4th 1310, 1316 [when a jurisdictional finding may have

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abuse of alcohol and methamphetamine placed daughter at risk
of serious physical harm. We disagree.

Standard of review and relevant law

We review jurisdictional findings for substantial evidence.
(In re Yolanda L., supra, 7 Cal.App.5th at p. 992.) “In doing so,
we view the record in the light most favorable to the juvenile
court’s determinations, drawing all reasonable inferences from
the evidence to support the juvenile court’s findings and orders.
Issues of fact and credibility are the province of the juvenile court
and we neither reweigh the evidence nor exercise our
independent judgment. [Citation.] 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.]’ [Citation.]” (Ibid.)
Substantial evidence can be based on inferences that are
grounded in logic and reason, but not speculation or conjecture
alone. (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397,
420; In re Donovan L. (2016) 244 Cal.App.4th 1075, 1093.) “The
appellant has the burden of showing there is no evidence of a
sufficiently substantial nature to support the findings or orders.”
(In re E.E. (2020) 49 Cal.App.5th 195, 206; accord, In re D.B.

consequences for a child’s placement, the appellate court has
discretion to consider the question]; accord, In re Madison S.
(2017) 15 Cal.App.5th 308, 329.)

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(2018) 26 Cal.App.5th 320, 328–329; In re D.C., supra, 243
Cal.App.4th at p. 52.)
Dependency jurisdiction is warranted 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 the failure or
inability of his or her parent or guardian to adequately supervise
or protect the child.” (§ 300, subd. (b)(1); In re R.T., supra, 3
Cal.5th at p. 625.) Section 300, subdivision (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.” (In re R.T., supra, at pp. 624, 627–633, 636–637, fn. 6
[disapproving In re Precious D. (2010) 189 Cal.App.4th 1251, and
rejecting the reasoning requiring parental neglect for jurisdiction
as set forth in In re Rocco M. (1991) 1 Cal.App.4th 814, 820].) To
sustain an allegation based on risk of future harm to the child,
that risk must be shown to exist at the time the court makes the
jurisdictional finding, but the court need not wait until the child
is seriously injured to assume jurisdiction. (In re Yolanda L.,
supra, 7 Cal.App.5th at p. 993.) For children of “tender years”
under the age of six, “‘the 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.’” (In
re Christopher R. (2014) 225 Cal.App.4th 1210, 1220; In re Drake
M. (2012) 211 Cal.App.4th 754, 767.) “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. Successful participation in a
treatment program for substance abuse may be considered in
evaluating the home environment.” (§ 300.2.) “A parent’s ‘“[p]ast
conduct may be probative of current conditions” if there is reason

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to believe that the conduct will continue’ [Citations.]” (In re
Kadence P., supra, 241 Cal.App.4th at p. 1384.)

Analysis

The record contains substantial evidence to support the
trial court’s finding that daughter, who was not yet two months
old at the time of the jurisdictional hearing, was at substantial
risk of serious physical harm based on the length and nature of
father’s substance abuse history. Although father chooses to
focus on the evidence favorable to him, in assessing whether to
affirm the juvenile court’s order, we do not ignore the substantial
evidence supporting the jurisdictional finding.
We are unpersuaded by father’s argument that because he
does not meet the clinical definition of a substance abuser, the
court’s exercise of jurisdiction based on his use of drugs and
alcohol was in error. The clinical definition of substance abuse
“is not a comprehensive, exclusive definition mandated by either
the Legislature or the Supreme Court, and we are unwilling to
accept [father’s] argument that only someone who has been
diagnosed by a medical professional or who falls within one of the
specific DSM-IV-TR categories can be found to be a current
substance abuser.” (In re Christopher R., supra, 225 Cal.App.4th
at p. 1218.) Moreover, cases finding a substantial risk of harm to
a child based on a parent’s drug use “‘tend to fall into two factual
patterns. One group involves an identified, specific hazard in the
child’s environment—typically an adult with a proven record of
abusiveness. [Citations.] The second group involves children of
such tender years that the absence of adequate supervision and
care poses an inherent risk to their physical health and safety.’”

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(Id. at p. 1220.) As stated, where, as here, the child is six years
old or younger at the time of the jurisdiction hearing and thus
falls within the second group, the juvenile court’s “‘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 harm.’” (Id. at p. 1219; see also, In re K.B.
(2021) 59 Cal.App.5th 593, 601.)
The record contains evidence that father drank alcohol and
used methamphetamine4 from a very young age. Father
admitted he was at risk of liver failure from drinking alcohol, and
he lied to law enforcement to avoid arrest. His past legal
troubles, including a 2017 arrest for possession of a controlled
substance and an active restraining order obtained by paternal
grandmother support the reasonable inference that father had
ongoing problems with drug and alcohol use. Although father
had participated in at least two drug programs, and was living in
a sober living facility before meeting mother one year before
daughter’s birth, there was evidence he used methamphetamine
with mother, and used during the time mother was pregnant.
Mother reported that she and father used drugs together, and
father was aware of her relapse during pregnancy. Father
admitted using methamphetamine just seven months before
daughter’s birth; he also admitted smoking marijuana, and tested
positive for marijuana shortly after daughter’s birth.

4 Methamphetamine is “‘an inherently dangerous drug
known to cause visual and auditory hallucinations, sleep
deprivation, intense anger, volatile mood swings, agitation,
paranoia, impulsivity, and depression.’” (In re Alexzander C.
(2017) 18 Cal.App.5th 438, 449.)

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 The court found father’s changing story about the
frequency and extent of his drug use to be less than credible, and
concluded father had an ongoing history of drug use, and that a
recent enrollment in a treatment program was not enough to
address the risk of harm. Considering daughter’s young age and
the evidence of father’s lengthy history of drug use, it was
reasonable for the court to find that daughter would be in danger
of risk of harm absent court intervention. (See In re J.M. (2019)
40 Cal.App.5th 913, 922 [children age three and under were at
substantial risk of harm based on mother’s positive test for
methamphetamine and cocaine and use of marijuana]; In re
Kadence P., supra, 241 Cal.App.4th at p. 1384–1385 [mother’s
substance abuse problem and attempts to conceal it placed her
infant daughter at substantial risk of harm, even though the
child had not yet been harmed]; In re Christopher R., supra, 225
Cal.App.4th 1210 at p. 1220 [father’s persistent drug use
rendered him incapable of providing regular care for his infant
child].)

B. Removal Order

Father contends there was insufficient evidence to support
the court’s removal order, including the finding that the
Department made reasonable efforts to prevent removal.

Standard of review and relevant law

We review whether there was substantial evidence to
support the court’s removal order under the heightened standard
of review set by our Supreme Court. (Conservatorship of O.B.

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(2020) 9 Cal.5th 989, 1005.) When “presented with a challenge to
the sufficiency of the evidence associated with a finding requiring
clear and convincing evidence, the [appellate] court must
determine whether the record, viewed as a whole, contains
substantial evidence from which a reasonable trier of fact could
have made the finding of high probability demanded by this
standard of proof.” (Ibid.)
“‘At the dispositional hearing, a dependent child may not be
taken from the physical custody of the parent under section 361
unless the court finds there is clear and convincing evidence
there is or would be a substantial danger to the child’s physical
health, safety, protection, or physical or emotional well-being if
returned home, and that there are no reasonable means to
protect the child’s physical health without removing the child.’”
(In re D.P., supra, 44 Cal.App.5th 1058, 1065; accord, In re G.C.
(2020) 48 Cal.App.5th 257, 265; In re D.C., supra, 243
Cal.App.4th 41, 51, 54; see § 361, subd. (c)(1).) The juvenile court
must determine “whether reasonable efforts were made to
prevent or to eliminate the need for removal of the minor from
his or her home” and “shall state the facts on which the decision
to remove the minor is based.” (§ 361, subd. (e).) The California
Rules of Court also require the court to determine and make a
finding as to “whether reasonable efforts to prevent or eliminate
the need for removal” were made by the Department. (Rule
5.695(d).) “The parent need not be dangerous and the minor need
not have been harmed before removal is appropriate. The focus
of the statute is on averting harm to the child.” (In re T.W. (2013)
214 Cal.App.4th 1154, 1163.)

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Analysis

Given that daughter was not even two months old when the
court ordered removal, the record contains sufficient evidence,
even under the clear and convincing evidence standard, to
support the court’s reasonable efforts finding and its removal
order.
We are not persuaded by father’s attempt to compare the
facts of this case to In re Ashly F. (2014) 225 Cal.App.4th 803. In
that case, the grounds for dependency were mother’s physical
abuse of the children and father’s failure to protect them from the
abuse. (Id. at pp. 806–807.) By the time of the disposition
hearing, neither the Department nor the court had considered
returning the children to father’s custody, even though mother
had moved out of the house. Based on the absence of any
evidence the court or the Department had considered whether
there were reasonable means to return the children to their
home, the appellate court reversed the removal order. (Id. at pp.
808, 810–811.) Here, returning daughter to father’s custody is
not a reasonable alternative to removal, because father’s lengthy
history of using drugs and alcohol, and the evidence that such
issues remain unresolved, pose a danger to his infant daughter’s
physical health.
We agree with father that the Department must make
reasonable efforts to prevent removal, and that the court must
find clear and convincing evidence of such efforts. Here, in the
detention report and at the detention hearing, both the
Department and the court recognized that both parents needed a
full substance abuse program. Father points to the lack of any
evidence the Department provided father with referrals, but this

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argument is hypothetical and disregards the facts before us.
According to the jurisdiction and disposition report, father
reported he had already enrolled in an outpatient substance
abuse program at Clinica Romero in September 2020. The
Department also reported, in a last minute information report,
that father subsequently enrolled in a residential treatment
program just days before the jurisdiction and disposition hearing.
The court found father had not yet fully addressed his addiction
problems and, given the risk of relapse, there was no reasonable
alternative to removal.
Father’s only other argument is that the court failed to
consider reasonable alternatives such as conditioning daughter’s
return to his physical custody on his continued participation in
the drug treatment program, or permitting father to live with
paternal relatives and ordering the Department to conduct
frequent unannounced visits. Considering daughter’s young age
and father’s shifting stories about his interactions with family
members and law enforcement, father has not met the burden of
showing that a finding of no reasonable efforts was compelled as
a matter of law.

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 DISPOSITION

The court’s jurisdictional finding and dispositional orders
are affirmed.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.

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