Opinion
B323867
04-10-2024
In re V.G., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.G., Defendant and Appellant.
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. 21LJJP00584, Stephanie M. Davis, Judge Pro Tempore.
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
CURREY, P. J.
We do not recite the factual and procedural background for this case in detail because our opinion is unpublished and the parties are familiar with its facts and procedural history. (People v. Garcia (2002) 97 Cal.App.4th 847, 851 [unpublished opinion merely reviewing correctness of trial court's decision "does not merit extensive factual or legal statement"].)
This case arises out of the dependency proceedings relating to five-year-old V.G., the daughter of S.G. (mother) and non-party I.G. (father). The juvenile court declared V.G. a dependent of the court under Welfare and Institutions Code section 300, subdivision (b) based in part on mother's: (1) failure to protect V.G. by allowing her to ride in a vehicle driven by father while he was under the influence of alcohol (count b-2); (2) transportation of V.G. in a car without a valid driver's license (count b-3); and (3) substance abuse (count b-4). It then removed V.G. from her parents, ordered mother to participate in reunification services, and granted her monitored visits. Mother's court-ordered case plan requires her to participate in a full substance abuse treatment program with aftercare, weekly random and on-demand drug/alcohol testing, a 12-step program with a court card and sponsor, a parenting program, and individual counseling.
All undesignated statutory references are to the Welfare and Institutions Code.
Mother challenges the juvenile court's jurisdictional and dispositional orders. Specifically, she asserts the jurisdictional findings and the removal order pertaining to her are unsupported by substantial evidence. Mother also contends the juvenile court abused its discretion by ordering her to participate in the services in her case plan and by requiring her visits to be monitored.
As discussed below, we conclude the juvenile court's jurisdictional finding on count b-2 is supported by substantial evidence. The court's findings on counts b-3 and b-4, however, are not. With respect to the dispositional order, we discern no error. We therefore affirm in part and reverse in part.
DISCUSSION
The juvenile court also exercised jurisdiction over V.G. based on father's unresolved "history of violent and assaultive behavior" and substance abuse issues. Where, as here, "jurisdictional findings have been made as to both parents but only one brings a challenge, the appeal may be rendered moot." (In re D.P. (2023) 14 Cal.5th 266, 283.) An appeal is not moot, however, "where a jurisdictional finding affects parental custody rights [citation], curtails a parent's contact with his or her child [citation], or 'has resulted in [dispositional] orders which continue to adversely affect' a parent [citation].'" (Id. at pp. 277-278.) Applying these principles, we agree with mother that her challenges to the jurisdictional findings at issue are justiciable because they form the basis of the dispositional order on appeal, which continues to affect her by requiring her to participate in certain services and limiting her contact with V.G.
At the time of the adjudication hearing in August 2022, section 300, subdivision (b)(1) stated that the juvenile court may exercise jurisdiction over a child if it finds "[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 the child's 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 . . . substance abuse."
We review jurisdictional findings for substantial evidence. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) Under this standard, "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." (Ibid.) "We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) "Substantial evidence must be of ponderable legal significance. It is not synonymous with 'any' evidence. [Citation.] The evidence must be reasonable in nature, credible, and of solid value." (In re Dakota H., supra, 132 Cal.App.4th at p. 228.) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order." (Ibid.) "'"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."'" (In re Yolanda L., supra, 7 Cal.App.5th at p. 992.)
A. Failure to Protect V.G. From Father's Endangering Conduct
In sustaining count b-2, as amended by interlineation, the juvenile court found true the allegation that mother failed to protect V.G. by allowing her to ride in a car driven by father, while knowing father was under the influence of alcohol. Mother contends this finding is unsupported by substantial evidence because she reportedly "observed . . . father only had one drink before driving" and "did not believe he was under the influence or that [V.G.] was in danger." She further asserts similar incidents are unlikely to recur because father was in custody and therefore "no longer posed a risk of harm to [V.G.] from his alcohol drinking."
Mother's argument is unpersuasive. The juvenile court was not required to credit her statements. And, when viewed in the light most favorable to its findings, the record contains sufficient evidence to support an inference that mother knew father was intoxicated when she allowed him to drive the family vehicle.
The record reflects that, in February 2021, the family was involved in a car crash on the side of a highway after leaving a restaurant. According to the traffic collision report from the California Highway Patrol (CHP), a law enforcement officer observed the family's car "begin swerving, veer into the north dirt shoulder and strike a ditch." The officer then approached the car and spoke to father, who was sitting in the driver's seat and admitted to driving the car. When asked how much he had to drink, father stated he had consumed two beers. At the time, father smelled of alcohol, his eyes were red and watery, and his speech was slow and slurred. Father also stumbled as he exited the car.
Accordingly, the evidence shows father exhibited numerous signs of alcohol intoxication after running the family's car into a ditch on the side of the road. On this record, a reasonable person could infer that mother observed these signs beforehand, after having dinner with him at the restaurant and seeing him consume alcoholic beverages, and therefore knew he was intoxicated, but nonetheless allowed him to drive the family.
The evidence in the record could also lead a reasonable person to conclude a similar incident may recur. When interviewed by the Department of Children and Family Services (Department) about the February 2021 incident, mother related that she-not father-was driving the family from a restaurant when their car got "'a popped tire.'" At no point has she admitted the family's involvement in a car crash. Nor has she acknowledged or taken responsibility for her role in placing V.G. in danger. On these facts, the juvenile court could reasonably conclude that, in the future, mother may allow father-who had yet to be convicted of the offenses that he had been charged with-or another person to drive V.G. while intoxicated. (In re K.B. (2021) 59 Cal.App.5th 593, 604, overruled on other grounds by In re N.R. (2023) 15 Cal.5th 520, 560, fn. 18 (N.R.) ["A court is entitled to infer past conduct will continue when the parent denies there is a problem"].)
In sum, for the reasons discussed above, the juvenile court's finding relating to mother on count b-2 is supported by substantial evidence. The juvenile court therefore did not err by sustaining count b-2 with respect to mother.
B. Mother's Driving V.G. Without a Valid License
With respect to count b-3, the juvenile court found true the following allegations: "On multiple prior occasions . . . mother . . . placed [V.G.] in a detrimental and endangering situation in that[,] after having her license suspended due to a DUI, [she] drove a vehicle without a license while [V.G.] was a passenger in the vehicle. Such conduct by . . . mother endangers [V.G.'s] physical health and safety, and places [her] at substantial risk of serious physical harm, damage, and danger." Mother contends the juvenile court erred by sustaining count b-3 because the record does not establish that she placed V.G. at risk of serious physical harm by driving her in a car without having a valid driver's license. In so doing, she implicitly disputes the court's finding that her license was "suspended due to a DUI," noting that in an interview with the Department, she stated she received her license when she was 18 years old, but it expired. We agree with her arguments.
We would affirm the disposition on this count if mother were driving the child after losing her license due to substance abuse. But the record does not establish mother's license was suspended due to having a DUI conviction. The Department does not cite any evidence supporting the juvenile court's finding on this point.
We note that, at the adjudication hearing, counsel for the Department asserted "[t]here is a reason why mother's license was revoked" relating to "the parents' driving under the influence and crashing." It is well-settled, however, that "[a]rgument of counsel is not evidence." (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173.)
We cannot condone driving, let alone driving with a young child as a passenger, without a valid license. But the Department bears the burden of demonstrating that mother's driving placed the child at substantial risk of serious physical harm. It did not do so.
When interviewed by the Department in November 2021, V.G.'s maternal grandmother reported that mother "is driving without a license and has [V.G.] in the vehicle with her." On the same date, the Department interviewed V.G.'s maternal grandfather, who related that "[a]bout a week ago," mother "called him asking for a ride to the[ir] house as there was a checkpoint and she was driving without a license" with V.G. in the vehicle. Beyond these reports, the record does not contain any other evidence describing to what extent mother has driven V.G. without having a valid driver's license, nor any evidence illustrating how her actions placed V.G. at substantial risk of serious physical harm. For this reason, the juvenile court erred by sustaining count b-3. (See § 300, subd. (b); see also In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318 [for purposes of section 300, "[t]he Department has the burden of showing specifically how the minors have been or will be harmed" by their parent's behavior].)
C. Mother's Substance Abuse
Mother asserts the jurisdictional finding on count b-4 must be reversed because "[n]o substantial evidence support[s] the juvenile court's jurisdictional finding that [V.G.] was at a current risk of harm from . . . mother's marijuana use." Again, we agree.
While this appeal was pending, our Supreme Court decided In re N.R., supra, 15 Cal.5th 520, which clarifies when the juvenile court may exercise jurisdiction under section 300, subdivision (b) based on a parent's substance abuse. On this point, the court stated "the government must establish, as separate elements, that (1) substance abuse (2) makes a parent or guardian unable to provide regular care for a child and (3) this inability has caused the child to suffer serious physical harm or illness or creates a substantial risk of such harm or illness." (N.R., supra, at p. 558.) Each of these elements must be separately proven even where, as here, the case involves a young "child of '"tender years."'" (Id. at p. 559.) And, for purposes of section 300, subdivision (b), the term "'substance abuse' bears its ordinary meaning of excessive use of drugs or alcohol ...." (N.R., supra, at p. 555.)
Applying these principles, we conclude the juvenile court erred by sustaining count b-4. As discussed below, although the record reflects mother uses marijuana occasionally, it does not demonstrate that her marijuana use rendered her incapable of providing V.G. with regular care or adequate supervision.
When interviewed by the Department in November 2021, mother reported that she "smokes marijuana 'from time to time'" but did not use any other substances. When she was living with father, she smoked every two to three days while father watched V.G. According to mother, the parents "were never both under the influence."
During another interview with the Department in January 2021, mother reported that she "'took some ecstasy'" to start Narcotics Anonymous classes because she was told she could not attend classes "unless [she] was 'dirty.'" V.G. was not in mother's care at the time. Then, in July 2022, mother reported she had smoked "a little" marijuana because she was feeling stressed. Mother participated in drug/alcohol testing between February 2019 and July 2022. Her results were as follows: three positive tests (February 8 and May 28, 2019; July 7, 2022); three noshows (May 24, 2019; December 9 and December 21, 2021); and six negative tests (May 12, May 16, May 31, June 17, June 27, and July 18, 2022).
We note that V.G.'s maternal grandparents both expressed concerns regarding mother's behavior while she was living in their home. Maternal grandmother reported that mother "'likes to get high,'" that she occasionally left the house with V.G. and did not return until late at night, that mother is awake in the late night/early morning hours, and that mother's purse smells of marijuana. Maternal grandfather reported that mother tends to provide untruthful and inconsistent statements regarding her whereabouts, and that "mother cannot remain still and her conversations tend to change randomly."
Despite having these concerns, however, maternal grandfather related that "[o]verall, . . . [mother] takes good care of the child." According to maternal grandfather, mother "feeds [V.G.] and gets up to attend to her needs." Consistent with his statements, maternal grandmother reported that mother feeds V.G. when she asks for food. Maternal grandmother denied seeing any bruises or marks on V.G. She also has not witnessed mother exhibit any aggression toward V.G.
Since V.G.'s detention in December 2021, Mother has been visiting V.G. multiple times per week. The visits are monitored by maternal grandmother, who has not expressed any concerns regarding mother's behavior during visits. According to maternal grandmother, mother plays and interacts with V.G., cooks for her, cleans her room, and attends church with the family. Mother's reports regarding the quality of her visits were consistent with maternal grandmother's.
In sum, the evidence shows mother uses marijuana occasionally, up to a few times per week. It also reflects she used ecstasy once, while V.G. was not in her care. Nothing in the record, however, demonstrates mother has used ecstasy, or any other illicit substances, on other occasions. Nor does it contain any evidence showing mother's marijuana use rendered her incapable of providing V.G. with adequate care or regular supervision, and thereby placed V.G. at substantial risk of serious physical harm. Thus, the juvenile court erred by sustaining count b-4. (See N.R., supra, 15 Cal.5th at p. 540 [section 300 "allows for dependency jurisdiction based on substance abuse only when this abuse leads to an 'inability' on the part of a parent or guardian 'to provide regular care for [a] child' [citation] that causes the child to suffer, or creates 'a substantial risk that the child will suffer, serious physical harm or illness'"]; In re Destiny S. (2012) 210 Cal.App.4th 999, 1003 ["[A] parent's use of marijuana 'without more,' does not bring a minor within the jurisdiction of the dependency court." (Italics omitted.)].)
III. Dispositional Order A. Removal
Pursuant to section 361, subdivision (c)(1), the juvenile court may remove a child from the custody of a parent if it finds, by clear and convincing evidence, "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." "A juvenile court's removal order at a disposition hearing will be affirmed on appeal if it is supported by substantial evidence." (In re V.L. (2020) 54 Cal.App.5th 147, 154.)
In Conservatorship of O.B. (2020) 9 Cal.5th 989 (O.B.), our Supreme Court clarified the nature of substantial evidence review applicable to a challenge to the sufficiency of the evidence supporting a finding made under the clear and convincing evidence standard. It held: "[A]n appellate court must account for the clear and convincing standard of proof when addressing a claim that the evidence does not support a finding made under this standard. 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 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." (Id. at pp. 10111012.)
In challenging the removal order, mother raises two arguments. First, although not entirely clear, she appears to contend removal was unwarranted because V.G. would not be at risk of harm if returned to her care. In so doing, she emphasizes the positive nature of her visits with V.G. and her participation in pre-adjudication services, including 12 one-hour parenting classes in the Love and Logic program, 12 one-hour substance abuse education classes in the A Way Back Intervention program, and individual counseling.
This argument misses the mark. As discussed above, the record reflects that, in February 2021, mother allowed V.G. to be driven by father when she knew he was under the influence of alcohol. While mother has since participated in services, she still has not acknowledged how the February 2021 incident placed V.G. at risk of harm, or taken responsibility for her role in exposing V.G. to that risk. Further, mother has not explained how she has gained skills/knowledge from her services to ensure V.G. is not placed at future risk of harm in a similar fashion. Instead, she has only related that her parenting classes taught her about "delayed consequence and about the importance of giving a child[ ] chores," and vaguely reported that "her classes have really helped her." On this record, "a reasonable fact finder could have found it highly probable" (O.B., supra, 9 Cal.5th at p. 1011) that, if returned to mother's care, V.G. would face "substantial danger to [her] physical health, safety, [and] protection." (§ 361, subd. (c)(1).)
Next, with respect to the second prong of the two-pronged test for removal under section 361, subdivision (c)(1), mother argues that "reasonable alternatives to removal existed such as unannounced home visits, family therapy, preservation services, and wraparound services." We reject this argument, as mother does not explain how these services would ensure that she does not allow V.G. to be driven in a vehicle operated by a driver who is intoxicated in the future.
Accordingly, for the reasons discussed above, we conclude the juvenile court did not err by removing V.G. from mother.
B. Required Services in Court-Ordered Case Plan
In general, "[a]t the dispositional hearing, the juvenile court must order child welfare services for the minor and the minor's parents to facilitate reunification of the family. [Citations.] The court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accord with its discretion." (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) "Of course, the juvenile court's discretion in fashioning reunification orders is not unfettered. Its orders must be 'reasonable' and 'designed to eliminate those conditions that led to the court's finding that the child is a person described by Section 300.' [Citation.] 'The reunification plan "'must be appropriate for each family and be based on the unique facts relating to that family.'"'" (In re Nolan W. (2009) 45 Cal.4th 1217, 1229.)
Where a parent's substance abuse is concerned, "[t]he juvenile court has authority to require a parent to submit to substance abuse treatment as part of a reunification plan as long as the treatment is designed to address a problem that prevents the child's safe return to parental custody." (In re Nolan W., supra, 45 Cal.4th at p. 1229.)
Mother asserts the juvenile court abused its discretion by ordering her to participate in substance abuse related services, individual counseling, and a parenting program. Her argument requires us to consider whether these services are reasonably "'designed to eliminate th[e] conditions'" giving rise to the court's jurisdictional finding and removal order relating to mother. (In re Nolan W., supra, 45 Cal.4th at p. 1229.) As discussed above, the court properly exercised jurisdiction over V.G. and removed V.G. from mother because she allowed V.G. to ride in a car driven by father even though she knew father was intoxicated, but has yet to take responsibility for her actions.
The juvenile court did not abuse its discretion by requiring mother to participate in a full drug/alcohol treatment program with aftercare, a 12-step program with a court card and sponsor, and weekly random and on-demand drug/alcohol testing. The record contains evidence showing mother drank alcohol while eating dinner with father before the car accident, and that she was under its influence at the time of the crash. Based on this evidence, the juvenile court could reasonably infer mother's alcohol consumption impaired her judgment, leading her to allow father to drive the family while intoxicated himself. Given the apparent connection between mother's alcohol consumption and her failure to protect V.G. from father, we conclude the order directing mother to participate in services related to substance abuse is reasonably "'designed to eliminate th[e] conditions'" giving rise to jurisdiction and removal. (In re Nolan W., supra, 45 Cal.4th at p. 1229.)
We likewise discern no abuse of discretion in the juvenile court's order directing her to participate in individual counseling and a parenting program. Once again, we acknowledge mother's completion of the Love and Logic parenting program, as well as her participation in counseling with a pastor at New Hope Ministries. The record, however, does not demonstrate the parenting program was approved by the Department. Nor does it illustrate how the program has assisted mother in resolving the issues giving rise to jurisdiction and removal. Similarly, while the progress letter regarding mother's counseling states the pastor "ha[s] been working with [mother] closely and providing counsel on subjects such as parenting, sobriety, coping with trauma, and other subjects," it does not describe to what extent-if any- mother has addressed the February 2021 incident, or her role in placing V.G. at risk of harm, during her sessions.
By requiring mother to attend counseling specifically to address case issues and mandating her participation in a parenting program under the Department's supervision, the juvenile court ordered mother to participate in services that will help her accept the family's involvement in the February 2021 car crash, understand the role she played in placing V.G. at risk of harm, and obtain skills/knowledge she can use to ensure she does not engage in future behavior placing V.G. in danger. In so doing, the court appropriately ordered her to engage in services "'designed to eliminate th[e] conditions'" leading to jurisdiction and removal. (In re Nolan W., supra, 45 Cal.4th at p. 1229.)
C. Monitored Visitation
"We review an order setting visitation terms for abuse of discretion. [Citations.] We will not disturb the order unless the trial court made an arbitrary, capricious, or patently absurd determination." (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356.)
In asserting the juvenile court abused its discretion by restricting her visits with V.G. to monitored visits, mother fixates on the positive and consistent nature of her visits. Once again, her argument misses the mark. Rather than focusing solely on the quality of her visits, we must evaluate whether the juvenile court exceeded the bounds of its discretion by requiring mother's visits to be monitored as "condition[ ] [of] . . . [her] right to visitation in light of the particular circumstances of the case before it." (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.)
The record demonstrates mother has engaged in behaviors that cast doubt on her judgment and her ability to prioritize V.G.'s well-being. Specifically, as discussed above, it shows: (1) mother allowed V.G. to be driven by father when she knew he was intoxicated, but has yet to take responsibility for her actions, and instead provided conflicting statements regarding her role in the incident; (2) maternal grandmother reported that, on more than one occasion, mother took V.G. out with her and did not return until very late at night; and (3) maternal grandparents both related mother has driven a car with V.G. as a passenger when she did not have a valid driver's license. Under these circumstances, we conclude the juvenile court did not abuse its discretion by requiring mother's visits to be monitored.
DISPOSITION
To the extent it pertains to mother, the jurisdictional finding on count b-2 is affirmed. The jurisdictional findings on counts b-3 and b-4 are reversed. The dispositional order is affirmed.
We concur: MORI, J., ZUKIN, J.