Filed 7/26/21 In re E.H. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
In re E.H., a Person Coming B309962
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
20CCJP04883A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JOHNNY H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Peter R. Navarro, Judge Pro Tempore.
Affirmed.
1
Emily Uhre, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Veronica Randazzo, Deputy County
Counsel for Plaintiff and Respondent.
In this juvenile dependency case, the juvenile court
declared seven-month-old E.H. (son) a dependent of the court and
removed him from the custody of both parents. On appeal,
Johnny H. (father) claims there is insufficient evidence to support
the removal order.1 We affirm.
BACKGROUND
1. Events Preceding Dependency Proceedings
Son was born in May 2020. He is the only child of father
and mother. Son was three months old in September 2020, when
respondent Los Angeles County Department of Children and
Family Services (Department) received a referral that mother
had used drugs and hit father in front of son. At the time, father
and mother were no longer in a relationship; father had moved
out of the family home.
The Department investigated the referral allegations at the
family home on September 14, 2020. Son was found lying on the
bed where drug paraphernalia was present. He appeared
“healthy and thriving.” Police were also at the home. During a
search of the home, officers recovered methamphetamine and
additional drug paraphernalia.
1 Evelyn M. (mother) is not a party to this appeal.
2
Mother admitted having used methamphetamine earlier
that day. Mother reported that she and father used
methamphetamine and heroin together. She stated that father
was in and out of prison, and was recently arrested for selling
drugs to undercover police. Mother said their relationship
involved domestic violence, but most disagreements were verbal.
Mother denied having contact information for father. She
disclosed father was living with paternal grandmother.
Later that day, a Department social worker telephoned
father at paternal grandmother’s home. During the phone call,
father acknowledged he was son’s father. He had recently moved
out of the family home because of issues with mother. Father
admitted the couple argued, but he denied any physical
altercations. Father had not seen mother using drugs, but he
was suspicious, having noticed drug paraphernalia in the home.
Father did not think mother was capable of properly caring for
son. Father denied using drugs or engaging in drug sales,
although he confirmed having been recently arrested for selling
drugs. Father said he was released and not convicted. Father
said he currently worked as a fitness instructor and wanted
custody of son.
The police arrested mother for child endangerment. The
Department took son into protective custody and placed him in
the paternal grandmother’s care after father agreed to leave her
home.
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2. Dependency Petition and Detention Hearing
On September 16, 2020, the Department filed a three-count
petition under Welfare and Institutions Code2 section 300,
subdivision (b) on behalf of son. Count b-1 alleged mother’s illicit
drug abuse interfered with her ability to provide regular care and
supervision of son. Count b-2 alleged father had a history of
illicit drug abuse, was a current user of heroin and
methamphetamine, and his illicit drug use interfered with his
ability to provide regular care and supervision of son. Count b-3
alleged mother created a detrimental and endangering home
environment for son because of accessible drug paraphernalia
and was arrested for child endangerment.
At the September 21, 2020 detention hearing, the juvenile
court found father was son’s presumed father. The court made a
prima facie finding that son was a person described by section
300. The court ordered him detained from mother and father and
to remain placed with paternal grandmother. The court
permitted father to return to paternal grandmother’s home on
condition he submit to drug testing and continually test negative
for drugs. Any positive tests would require father to move out of
paternal grandmother’s home. The court further ordered father’s
visits to be monitored if they occurred outside paternal
grandmother’s home.
3. First-Amended Dependency Petition
On October 2, 2020, the Department filed a first-amended
section 300 petition. Counts a-1 and b-4 alleged the parents’
history of domestic violence, including two incidents of father
2 Undesignated statutory references are to the Welfare and
Institutions Code.
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striking mother, placed son at risk of severe physical and
emotional harm. Amended count b-2 added father’s September 8,
2020 arrest for “sales of Adderall/possession for sale/conspiracy.”
At the detention hearing on the amended petition, father
entered a general denial. The previously ordered out-of-home
placement for son remained in effect.
4. The Jurisdiction and Disposition Report
According to the jurisdiction/disposition report, father’s
criminal record consisted of three burglaries, two shoplifts, and
on September 8, 2020, transportation of a controlled substance,
possession of a controlled substance for sale, and conspiracy to
commit a crime. (It is unclear whether this information reflected
arrests and/or convictions.) Other than her recent arrest for child
endangerment, mother had no criminal record.
A. Alleged Domestic Violence (a-1 and b-4)
Mother stated father once struck her with a cleaning bottle
when son was present. On another occasion, he slapped her face
and spat on her. Father denied both incidents and claimed he
never “ ‘touched her with malicious intent.’ ”
B. Mother’s Alleged Drug Abuse (b-1 and b-3)
Paternal grandmother reported that on or about
September 27, 2020, mother appeared for a monitored visit with
son. Mother was combative and under the influence of drugs.
Mother took son and refused to return him. The police were
called, and son was returned to paternal grandmother.
C. Father’s Alleged Drug Abuse (b-2)
Mother stated father used Fentanyl and injected steroids.
Father denied mother’s allegation of steroid use and the
Department’s allegations of heroin and methamphetamine use.
Father stated he was in an outpatient (substance abuse) program
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two years earlier and had attended 12-step meetings until the
pandemic.
Father told a Department social worker that he had
submitted to one drug test. The social worker reminded father
that a missed or positive test meant father could not visit son in
paternal grandmother’s home. Father stated the day before he
had used a small amount of marijuana. The social worker
requested a drug test on-demand for father. As of September 23,
2020, the Department could not find drug test results for father.
At some point father told a social worker, “ ‘I think for the sake of
the court and peace of all around me, I am willing to submit to
drug tests.’ ”
As for father’s September 8, 2020 arrest, police reported he
had agreed to sell Adderall to an undercover officer in a parking
lot in response to a Craigslist advertisement. The officer found
Adderall in the car after father and a female passenger were
detained. Father acknowledged he was sitting in a parked car
with his girlfriend. Father stated he was holding money and her
Adderall, but no sale occurred. When he and the girlfriend began
to drive away, “ ‘the police lights came on.’ ”
Father’s case plan included weekly random or on demand
drug/alcohol testing, a parenting class, individual therapy, a
substance abuse rehabilitation program, and a 12-step program.
5. Jurisdiction Hearing
The jurisdiction hearing was held on October 20, 2020.
Father waived his appearance. Mother testified on her own
behalf. As pertinent here, it was mother’s testimony that the
Department and the police found the drug paraphernalia in
father’s room and the recovered syringes belonged to father, not
to her.
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At the conclusion of the jurisdiction hearing, the juvenile
court dismissed for insufficient evidence counts a-1 and b-4,
alleging domestic violence between the parents, and count b-2
alleging father’s illicit drug use. The court conformed counts b-1
and b-3 according to proof and sustained the counts as amended.
With respect to father, b-1 was amended to read: “The father . . .
knew of mother’s drug use and failed to protect the child. On
prior occasions, the mother was under the influence of illicit
drugs while the child was in the mother’s care and supervision.
The child is of such young age requiring constant care and
supervision and the mother’s illicit drug use interferes with
providing regular care and supervision of the child. The mother’s
use of illicit drugs and the father’s failure to protect endangers
the child’s physical health and safety and creates a detrimental
home environment, placing the child at risk of serious physical
harm and damage.”
The juvenile court amended b-3 to read: “[M]other . . .
created a detrimental and endangering home environment for the
child in that Law Enforcement found drug paraphernalia
including drug pipe and needles in the child’s home within access
of the child. Father knew of the environment created by mother
and failed to protect the child from exposure to this environment.
Such a detrimental and endangering home environment
established for the child by the mother together with the father’s
failure to protect, endangers the child’s physical health, safety
and well-being and places the child at risk of serious physical
harm and damage.”
6. Disposition Hearing
After two continuances, the disposition hearing was held on
December 2, 2020. The juvenile court admitted into evidence the
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Department’s detention report, jurisdiction/disposition report and
last-minute information reports dated November 20 and
December 2, 2020. The November 20, 2020 report indicated
father had failed to appear for drug tests on September 16,
October 8, October 15, October 23, October 29, and October 30,
2020. On September 17, 2020, father had tested positive for
marijuana. As of November 12, 2020, father had not enrolled in
any programs. As of September 30, 2020, father had visited son
at paternal grandmother’s home on three or four occasions.
However, his visits then became inconsistent and ceased as of
October 20, 2020. On November 8, 2020, paternal grandmother
reported father gave her money for son, but father did not enter
her home.
The December 2, 2020 report stated father was convicted of
driving on a suspended license (a misdemeanor) after a bench
warrant had been issued for his arrest for failing to appear on
July 20, 2020, for arraignment on the February 7, 2020 violation.
For disposition, son’s counsel and the Department asked
the juvenile court to remove son from the parents’ physical
custody and keep him placed with paternal grandmother.
Father’s counsel urged the court to return son to father’s custody,
noting there is no longer a risk to son from father’s failure to
protect; father and mother no longer lived together or had a
relationship. Father was currently employed and rented a two-
bedroom apartment to provide a safe environment for son.
Alternatively, father’s counsel requested father be allowed
unmonitored or overnight visits. Counsel further requested a
modification of the father’s case plan to delete the substance
abuse rehabilitation program as redundant of the court-ordered
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12-step program and as unnecessary given the court’s dismissal
of the b-2 count against father.
Observing son was “a preverbal seven-month-old infant,”
the juvenile court removed son from both parents’ custody after
finding clear and convincing evidence of a substantial danger
to his physical health, safety, protection, or well-being if
returned to the parents’ homes. The court also found there
were no reasonable means by which son’s physical health could
be protected without removing him from the parents’ custody,
and the Department had made reasonable efforts to prevent or
eliminate the need for removal and no services were available
to prevent removal. The court ordered son to remain placed
with paternal grandmother.
The court acknowledged having dismissed count b-2,
alleging father’s illicit drug use, but advised it could not “rule
out completely that there isn’t an issue there, just that there
was insufficient evidence” of such drug use. The court then
ordered father to continue to submit to random or on-demand
drug testing, but stated that his case plan would be modified to
delete the 12-step and substance abuse rehabilitation program
requirements. The court admonished if father missed or failed a
drug test, the Department could request the court to reconsider
whether a substance abuse program was warranted. The court
ordered family reunification services to be provided to the
parents and their visits to be monitored, subject to change if
they consistently tested negative for drugs. The court set a six-
month review hearing for June 2, 2021.
Father timely appealed.
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DISCUSSION
Father contends the evidence is insufficient to support the
juvenile court’s removal order. We disagree.
“ ‘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. (2020) 44 Cal.App.5th 1058, 1065; accord, In re G.C.
(2020) 48 Cal.App.5th 257, 264–265; 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).)
“In determining whether a child may be safely maintained
in the parent’s physical custody, the juvenile court may consider
the parent’s past conduct and current circumstances, and the
parent’s response to the conditions that gave rise to juvenile court
intervention.” (In re D.B. (2018) 26 Cal.App.5th 320, 332; accord,
In re N.M. (2011) 197 Cal.App.4th 159, 170.) “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 remains with the parent. [Citation.]” (In re N.M., at
pp. 169–170; accord, In re V.L. (2020) 54 Cal.App.5th 147, 154.)
“When reviewing a finding that a fact has been proved by
clear and convincing evidence, the question before the appellate
court is whether the record as a whole contains substantial
evidence from which a reasonable fact finder could have found it
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highly probable that the fact was true. In conducting its review,
the court must view the record in the light most favorable to the
prevailing party below and give appropriate deference to how the
trier of fact may have evaluated the credibility of witnesses,
resolved conflicts in the evidence, and drawn reasonable
inferences from the evidence.” (Conservatorship of O.B. (2020)
9 Cal.5th 989, 1011–1012; accord, In re V.L., supra, 54
Cal.App.5th at p. 155 [“O.B. is controlling in dependency cases”].)
Here, there is substantial evidence supporting the juvenile
court’s removal order for father having failed to protect son. The
record shows father was aware of mother’s drug abuse, yet he did
not seek custody of son, instead moving out of the family home
and leaving behind his infant son.
Father contends the evidence was insufficient to support
the juvenile court’s finding that no reasonable means existed to
prevent removal. Father insists that because he was under
Department supervision and living apart from mother, he could
have been given custody of son and received family maintenance
services. As a result, father urges, “any risk to [son] was
substantially diminished.” Father further faults the court for
focusing on his “possible drug use.” Father argues son’s removal
could have been avoided so long as his continued physical custody
of son was conditioned on remaining in paternal grandmother’s
home and having negative drug tests. Finally, father asserts the
court failed to comply with section 361, subdivision (e), which
requires it to “ ‘state the facts on which the decision to remove is
based.’ ”
Father’s arguments are unpersuasive. First, father’s claim
that, short of removal, the juvenile court could have ordered that
he could remain in paternal grandmother’s home unless he tested
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positive for drugs was the same order imposed at the detention
hearing. Father repeatedly resisted that order up to the
disposition hearing. Because father failed to comply with the
court-ordered drug testing, there were no reasonable alternatives
to removal.
Further, father ignores the logical implication of his
multiple missing drug tests along with the evidence of his prior
drug use. Common sense suggests a parent who consistently
refuses to submit to drug testing without an adequate
explanation does so because the parent knows the result will
reveal substance abuse. (In re Caden C. (2021) 11 Cal.5th 614,
637; In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217 [each
missed drug test is properly considered the equivalent of a
positive test].) In these circumstances, the juvenile court could
have been reasonably concerned about father’s sobriety,
concluding he had unresolved issues about his drug use and
lacked insight into how it could substantially harm his seven-
month-old son, thereby justifying removal. “ ‘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.’ ” (In re N.M., supra, 197 Cal.App.4th
at pp. 169–170; accord, In re V.L., supra, 54 Cal.App.5th at
p. 154.)
As for father’s claim the juvenile court failed to state
sufficient facts supporting removal as mandated by section 361,
subdivision (e), father did not interpose an objection on this
ground. “ ‘[A] reviewing court ordinarily will not consider a
challenge to a ruling if an objection could have been but was not
made in the trial court. [Citation.] The purpose of this rule is to
encourage parties to bring errors to the attention of the trial
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court, so that they may be corrected. [Citation.]’ ” (In re Rebecca
S. (2010) 181 Cal.App.4th 1310, 1313, quoting In re S.B. (2004)
32 Cal.4th 1287, 1293.) Although we have discretion to consider
father’s argument, we decline to do so because a timely objection
would have easily permitted the court to state the requisite
findings; and as we have determined, no means short of removal
would have adequately protected son.
Father’s reliance on Justice Menetrez’s dissenting opinion
in In re G.C., supra,48 Cal.App.5th at pages 272–278, is
misplaced. In concluding there was insufficient evidence to
support removal in that case, Justice Menetrez noted that the
record showed “[b]y the time of the jurisdiction and disposition
hearings, all of the immediate risks had been addressed.” (Id. at
p. 273.) Here, in contrast, father neither explained his missed
drug tests nor apparently realized their significance as
endangering son’s safety. Son’s risk had thus not been resolved
as of the disposition hearing.
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DISPOSITION
The juvenile court’s disposition order is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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