Opinion
B312008
12-21-2021
In re JESSE P., et al., Persons Coming Under the Juvenile Court Law. v. NORMA T., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
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 Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 20CCJP06558 Annabelle G. Cortez, Judge. Affirmed.
Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant. 1
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
CRANDALL, J. [*]
In September 2020, following Angelina G.'s birth, hospital testing revealed amphetamine and methamphetamine in the newborn's meconium. Although Norma T. (mother) attributed the test results to her Sudafed use, this explanation was later contradicted by the revelation of her own positive test for those substances in July 2020 while Angelina was in utero.
Additional investigation during the next several months revealed a 20-year history of mother's substance abuse (which she denied), including positive toxicology screens for two of the older children at birth. When confronted about these issues, mother and her relatives continued to blame Sudafed, minimized mother's substance abuse history, and denied her current use.
In December 2020, over the objection of the Department of Children and Family Services (Department), the juvenile court declined to detain Angelina and her three half-siblings, instead releasing them to mother and D.G.'s (father) care with stringent breast-feeding limitations and drug testing conditions.
In March 2021, the juvenile court took jurisdiction over Angelina and one other sibling, specifically finding that mother's minimization of her drug use was "not credible," that her explanation about Sudafed causing the positive drug test was "completely not supported by the record," and that mother's "complete lack of acknowledgment or accountability" with respect to substance abuse placed the children at risk. At disposition, the 2 juvenile court left the children in mother's care, supported by family maintenance services.
Mother appeals the jurisdictional finding, urging error in the juvenile court's conclusion about her methamphetamine use which, according to mother, did not cross the line into drug abuse. However, the juvenile court's factual findings with respect to Angelina's positive toxicology screen, mother's positive prenatal drug test, her lengthy history of substance abuse, and lack of credibility, constitute substantial evidence supporting the jurisdictional allegations.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Leading up to the Detention Hearing
This is an appeal from the juvenile court's assertion of jurisdiction over a newborn, Angelina (born September 2020), and her half-siblings, Andrew T. (born June 2003), Jesse P. (born February 2006), and Frank P. (born January 2011) (collectively, the children), under Welfare and Institutions Code section 300, subdivision (b)(1).
At the March 17, 2021, jurisdiction hearing the juvenile court struck Andrew from the dependency petition because he was nearly 18 years old.
Subsequent undesignated statutory citations are to the Welfare and Institutions Code.
Mother gave birth to Angelina at St. Francis Hospital. Four days later, the Department received a referral alleging Angelina was a victim of prenatal drug exposure to methamphetamine because the hospital had detected methamphetamine in Angelina's meconium. However, mother's 3 toxicology screen test was negative, and she suggested that the hospital had detected methamphetamine because she was taking Sudafed during her pregnancy on the advice of her physician.
A children's social worker (CSW) followed up on the referral by speaking with the hospital social worker, Michelle Bryant. Bryant reported that, in addition to the positive methamphetamine meconium test, mother also had had a "presumptive positive test" for amphetamine in July 2020. Bryant confirmed that Angelina tested positive for amphetamine and methamphetamine at birth. The CSW received an email from Bryant the following week stating that Angelina's "test confirmation was methamphetamines which is not a Sudafed component."
The hospital forwarded copies of mother's and Angelina's test results to the CSW, which confirmed that Angelina's drug test at birth was positive for both amphetamine and methamphetamine. Mother's drug test completed by LabCorp on July 21, 2020, also showed mother had "a presumed positive for [a]mphetamines."
On November 9, 2020, mother agreed to drug test for the Department the following day.
On November 10, 2020, the CSW received a call from mother stating that she had just left the drug testing facility because the facility had refused her urine sample. Mother explained that she was uncomfortable with how the drug test reviewer watched her submit to her drug test. Mother reported she was unable to create enough urine for the drug test and so the facility told her to discard the sample. Mother indicated she was willing to drug test again for the Department. The CSW advised she would contact mother to submit to a new drug test. 4 (Records later indicated that mother was a "no show" for this test.)
On November 19, 2020, mother called the CSW and stated she submitted to a drug test. Four days later, the CSW received mother's negative drug test results from Pacific Toxicology.
The CSW then interviewed family members regarding the allegations. Mother repeated her denial that she used substances, and also denied having a substance use history.Mother again offered that her use of Sudafed explained any positive test results for amphetamine and/or methamphetamine. When the CSW reminded mother that Angelina had tested positive for both substances at birth, mother offered no explanation. When asked if she had a criminal history, mother replied she had a conviction from 12 years ago for driving under the influence.
Mother in fact has an extensive substance abuse history.
Mother's CLETS report revealed numerous arrests, as well as numerous convictions for possessing a controlled substance and driving under the influence spanning from August 1990 to September 2019. (See People v. Martinez (2000) 22 Cal.4th 106, 113 [explaining "CLETS" reports].)
The CSW interviewed the children. The newborn Angelina displayed no marks or bruises and was appropriately clothed. Seventeen-year-old Andrew, 14-year-old Jesse, and 10-year-old Frank denied that anyone in the home used drugs. They reported feeling safe in the home.
The CSW interviewed father, who denied having any concerns for the family. When asked about Angelina's positive drug test results for amphetamine and methamphetamine, father 5 responded that mother only used Sudafed. Father said he did not know why Angelina tested positive for both substances. Father denied mother used drugs and had no concerns regarding mother.
On December 9, 2020, based upon a protective custody warrant, the Department removed the children from mother and released them to father.
B. The Petition and Detention Hearing
On December 11, 2020, the Department filed a section 300 petition, under subdivision (b)(1), on behalf of Andrew, Jesse, Frank, and Angelina based on mother's substance abuse, including Angelina's positive toxicology screen for amphetamine and methamphetamine.
On December 16, 2020, the juvenile court held a detention hearing, at which the Department asked the court to detain the children from mother and release them to father. The children's counsel, joined by mother, asked that mother be allowed to return to and reside in the family home, and her children be released to her, on the condition that she participate in a full substance abuse program, and consent to unannounced Department visits.
Although concluding that the Department had made a prima facie case, over its objections the court ordered the children released to the mother. However, the court ordered a family preservation referral for the family with the following additional orders: the Department was to make unannounced home visits; mother and father were to cooperate with the Department and make the children and themselves available for unannounced home visits; mother was not to breastfeed Angelina until she had four consecutive clean drug tests; and mother was to continue drug testing. 6
C. Subsequent Post-detention Investigation
In anticipation of the jurisdictional hearing, the dependency investigator (DI) interviewed mother, father, the children, the father of Jesse and Frank (Johnny P.), and extended relatives.
On February 23, 2021, the DI interviewed mother, who had sores on her forehead, which seemed to be from frequent scratching or picking. The DI's report noted that skin sores are a sign of methamphetamine use.
Mother stated she was enrolled in and nearly finished with an online parenting class. She was not yet enrolled in a substance abuse program and continued to deny that Angelina had tested positive for any substance, stating: "That is not true, my daughter did not test positive for amphetamine and methamphetamine because of me using drugs." Mother repeated that her use of Sudafed was likely what was causing positive tests. Mother repeated her denial that she currently used drugs or had a substance abuse history.
Mother reported that on July 21, 2020, her doctor had told her about her positive test for amphetamine, which she attributed to her Sudafed usage. Mother added, "Honestly I am tired of talking about this because I told you already I did not use drugs during my pregnancy, I only took Sudafed for my sinuses."
When asked about her history of methamphetamine usage, mother replied she had used the drug socially with friends when she was 20 years old but stopped when she was 24 years old (mother was now 37 years old). Mother denied ever using the drug around the children. Instead she left the children with the maternal grandmother when she used the drug socially. Mother explained she stopped using the drug on her own, and that she no 7 longer wanted to talk about behavior that was so far in the past. Mother stated she needed the Department to stop harassing her about her positive drug test because she was being honest about using Sudafed.
Father stated Angelina tested positive because mother was using Sudafed for her sinuses. Father denied he had ever witnessed mother using any drugs and denied mother used drugs. When asked about mother's history of drug usage, father replied, "That was a long time ago and that is no longer the case." Father stated that things were great with the children because he and mother were good parents. Andrew and Jesse both stated they felt comfortable in the home and denied witnessing any drug use. The DI observed Angelina was comfortable while in mother's arms. Mother fed her from a bottle.
Johnny P. stated that he visited Jesse and Frank weekly for a few hours and then returned them home. The maternal aunt said mother had been taking Sudafed for her sinuses for a long time. When asked about mother's history of methamphetamine use, the maternal aunt replied, "That was in the past. I helped her get out of that." The maternal aunt stated mother last used methamphetamine about five or six years ago and had since cleaned up her life.
From October 2020 to February 2021, mother had eight scheduled drug tests. Mother had two "no shows" in October and November 2020, and five negative drug tests from November to February 2021. When asked about her two missed drug tests, mother stated she displayed COVID-19 symptoms on the day of testing (although she never obtained a Covid test).
On February 25, 2021, the family began participating in family preservation services. 8
The Department's two reports prepared in advance of the jurisdiction hearing expressed grave concerns regarding mother's ongoing substance abuse.
The addendum report discusses specific inconsistencies surrounding mother's Sudafed explanation, and it confirms that no medication will result in a positive test for methamphetamine except use of the drug methamphetamine. The report points out that this is mother's third pregnancy where questions have arisen regarding her use of methamphetamine. The report elucidates that mother has a significant criminal history involving substance abuse beginning in 2003. She had a total of six arrests related to being under the influence of a controlled substance, or possession of a controlled substance, between 2003 and 2018. Her most recent arrest on May 3, 2018, was at that time still pending in criminal court. Whereas mother claimed to have stopped using methamphetamine when she was 24 years old, the arrest timeline contradicted this claim given that in 2018 she was 34 years old.
The Department recommended the court sustain the petition and the children be removed from mother and placed with father, and family reunification services be provided to mother.
D. Jurisdiction Hearing
On March 17, 2021, the juvenile court held the jurisdiction hearing, after which it sustained the two-count section 300, subdivision (b)(1) petition as pled. (Count 1 pertained to Angelina; count 2 pertained to the other children.)
In sustaining the petition, the court observed: "The court's specifically making [a] finding that [mother]'s statements as to her reported non-use are not credible . . . ." The court further 9 observed: "Mother specifically states that she stopped taking the medication in July, and the baby was born in September, . . . months after mom represents that she stopped taking Sudafed. The explanation that the positive test for amphetamines was caused by the Sudafed is just simply completely not supported by the record. . . . There is conflicting information as to mother's substance abuse history. It does appear that it's long and chronic. At this point mother is not being forthright about those positive tests or her use, which does place the children at risk."
E. Disposition Hearing
On April 9, 2021, the court held the disposition hearing. The court declared the children dependents of the court, found that the Department had made reasonable efforts to prevent removal of the children, and there were services available to prevent removal from both parents. The court ordered mother to participate in individual counseling, to submit to drug testing, and complete a full drug treatment program if she missed any test or tested dirty.
Mother timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
We review the court's jurisdictional findings for substantial evidence. (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) Under this standard," 'we must uphold the . . . [jurisdictional] findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support [them].'" (Ibid.) 10
Section 300, subdivision (b)(1), allows a child to be adjudged a dependent of the juvenile court 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, . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse. . . ." (Ibid.; In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215.)
There are "three elements for jurisdiction under section 300, subdivision (b), namely, (1) neglectful conduct or substance abuse by a parent in one of the specified forms, (2) causation, and (3) serious physical harm to the child, or a substantial risk of such harm." (In re Rebecca C. (2014) 228 Cal.App.4th 720, 724-725.) In deciding whether there is a substantial risk of serious physical harm, courts evaluate the risk that is present at the time of the jurisdiction hearing. (In re Christopher R., supra, 225 Cal.App.4th at pp. 1215-1216.)
B. Substantial Evidence Supports Dependency Jurisdiction over the Children
Mother argues the juvenile court erroneously asserted dependency jurisdiction over the children on the false premise that she ingested amphetamine and methamphetamine when in fact she only ingested Sudafed. Mother also contends that, even if she used amphetamine and/or methamphetamine while Angelina was in utero, such use was merely substance "use" that did not rise to the requisite level of substance "abuse."
As an initial matter, we reject mother's quarrel with the trial court's factual finding that she only used Sudafed, not 11 methamphetamine. The laboratory's July 21, 2020, presumptive positive test, and Angelina's confirmed positive test upon birth, are substantial evidence that mother was using methamphetamine while her child was in utero. She also evidenced skin sores consistent with methamphetamine use. (See In re Caden C. (2021) 11 Cal.5th 614, 640 ["In reviewing factual determinations for substantial evidence, a reviewing court should 'not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts' "].)
Moreover, mother's credibility was significantly impeached in multiple respects. She denied an extensive and recent criminal and child-abuse history involving substance use (that was contradicted by the record), provided questionable excuses for missed testing (that were impeached by the record), and had been involved in two prior pregnancies where substance abuse was involved.
Mother's uneven testing history, along with her questionable excuses, supports the presumption that the missed tests should constructively be considered positive tests. (In re Christopher R., supra, 225 Cal.App.4th at p. 1217.)
In addition to evidence of current use during her most recent pregnancy, "[a] parent's' "[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.' [Citation]." (In re Christopher R., supra, 225 Cal.App.4th at p. 1216.) This is precisely what the juvenile court judge was concerned about, i.e., that "mother is not being forthright about those positive tests or her use, which does place the children at risk." 12
The juvenile court judge was properly concerned about mother's continued denial of her confirmed substance use because "[o]ne cannot correct a problem one fails to acknowledge." (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.)
The juvenile court's factual findings that mother was abusing amphetamine and methamphetamine while her child was in utero, along with mother's lengthy history of unaddressed substance abuse issues, provide substantial evidence supporting dependency jurisdiction over the children. (See In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384-1385 [a mother's methamphetamine and marijuana abuse problem, and her ongoing attempts to conceal it, placed her daughter at substantial risk of harm, even though the child had not yet been harmed]; In re Christopher R., supra, 225 Cal.App.4th at p. 1219 [the mother's cocaine use during the last months of her pregnancy confirmed her poor judgment and willingness to endanger her children's safety due to substance abuse"]; In re Drake M., supra, 211 Cal.App.4th at p. 767 [in cases involving children of tender years, a "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"]; cf. In re L.C. (2019) 38 Cal.App.5th 646, 652-654 [no substantial evidence of drug abuse despite admission by legal guardian of methamphetamine use seven times in prior nine-month period, where guardian arranged for own drug tests to show no current use and enrolled in treatment].) 13
Although the law is not in agreement on when substance use reaches the point of substance abuse (In re J.A. (2020) 47 Cal.App.5th 1036, 1046, citing In re Drake M. (2012) 211 Cal.App.4th 754, 764), the record before us unambiguously supports the juvenile court's jurisdiction over the children.
DISPOSITION
The juvenile court's orders are affirmed.
We concur: CHANEY, J., BENDIX, Acting P. J. 14
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.