Filed 7/2/26 In re A.I. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.I., A Person Coming Under
the Juvenile Court Law.
D087208
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
(Super. Ct. No. J521613)
Plaintiff and Respondent,
v.
M.R.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County,
Daniela A. Reali-Ferrari, Judge. Affirmed in part and dismissed in part.
Cynthia L. Loo, under appointment by the Court of Appeal, for
Defendant and Appellant.
Damon M. Brown, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, and Indra N. Bennett, Deputy County Counsel, for Plaintiff
and Respondent.
T.K. (Mother) appeals from the juvenile court’s jurisdictional and
dispositional orders adjudicating her then approximately four-month-old son,
A.I., a dependent of the court under Welfare and Institutions Code1 section
300, subdivision (b)(1), and removing him from her custody. Mother asserts
substantial evidence does not support the court’s jurisdictional findings, or
the dispositional order that a substantial danger to A.I. existed if he were
returned home and no reasonable means existed to protect A.I. without
removing him from her custody. We affirm the court’s jurisdictional orders
and dismiss the appeal of the dispositional orders based on the parties’
settlement of this issue at trial.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Mother gave birth in April 2025,2 with both A.I. and Mother testing
positive for fentanyl.3 A.I. was admitted to the neonatal intensive care unit
for respiratory distress. He received the “maximum dosage of morphine” for
his withdrawal symptoms and remained hospitalized until June 19. At the
hospital, Mother reported using fentanyl since 2021 and admitted she used
fentanyl daily throughout her pregnancy. She claimed she tried to stop but
got “withdrawals and sweats.” F.I. (Father) resided with Mother and also
used fentanyl.
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2 All date references are to 2025.
3 Fentanyl is a potent opioid that is highly addictive, both physiologically
and psychologically. Fentanyl metabolizes into norfentanyl, an inactive
metabolite, with potential build-up of norfentanyl in the fatty tissues for later
excretion.
2
Mother admitted smoking fentanyl “every 8 hours or so” and described
herself as a “ ‘mild user’ ” who had tried inpatient treatment in the past but
did not want to attend inpatient treatment again, even though she knew it
would be her most effective option. She claimed she used fentanyl at bedtime
to help her sleep, was not an addict, and did not intend to continue using
fentanyl after giving birth. She kept her fentanyl use secret from her support
system because she did not want “ ‘to burden’ ” or “ ‘disappoint[]’ ” anyone, as
everyone believed she and Father were sober and doing well.
Father similarly stated his support system did not know he used drugs
“ ‘and we don’t want them to know.’ ” He claimed he was taking methadone
but had not used fentanyl for several weeks. However, a drug test came back
positive for cocaine, fentanyl and norfentanyl. Father later admitted “using”
a few days before the drug test. When confronted with his statement that he
had not used in weeks, he loudly stated, “ ‘you don’t know what it’s like to be
an addict or feel like you want to crawl out of your own skin.’ ” Father
disclosed “the longest he went without using is 12 [to] 14 hours before he
started getting withdrawals.” He described his withdrawal symptoms as
chills, anxiety, the inability to catch his breath, and feeling like he had the
flu “but 1000 times worse.” He reiterated that he was not an addict and was
trying to stop.
The San Diego County Health and Human Services Agency (Agency)
attempted to engage the parents in a safety plan, but they declined on
multiple occasions to provide a safety network because they did not want
others to know about their substance use. Mother enrolled in a methadone
clinic three days after giving birth and tested positive for fentanyl the day
she enrolled. In May, the Agency filed a petition alleging A.I. fell within the
scope of section 300, subdivision (b)(1), due to his parents’ untreated
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substance abuse. At the detention hearing on May 14, the juvenile court
detained A.I. out of the parents’ custody and ordered supervised visits,
voluntary services, and random drug testing for Mother twice per week.
Mother completed her 90-day inpatient treatment early on August 7,
after 79 days.4 Although the social worker encouraged her to remain at the
inpatient treatment facility for the full 90 days, enter a sober living facility,
or have the overnight visits with A.I. at her mother’s home, Mother instead
chose to return home to Father. Mother’s plan for continued sobriety
included participating in an active sober community, obtaining a sponsor,
Narcotics Anonymous (NA) meetings, and continued methadone treatment.
The August 19 addendum report noted that Father had been sober for more
than 30 days. By mid-August, the social worker was concerned that A.I.’s
return to parents could complicate their newfound sobriety. Parents were
early in the recovery process, and “movement forward should be made in a
safe and measured manner.”
On August 22, Mother tested positive for THC and fentanyl but
negative for norfentanyl. According to a representative from the drug testing
facility, these tests results indicated fentanyl use one or two days prior to
testing. Mother’s unsupervised and overnight visits were discontinued, and
the social worker instructed her not to breastfeed until she tested negative.
Father tested positive for THC and methadone and began outpatient
treatment in late August. Although Mother had not obtained a sponsor or
attended sobriety meetings, she began outpatient treatment in mid-
September.
4 From May to early August, Mother tested negative for fentanyl. The
May 25 and June 5 results, however, were positive for norfentanyl and her
first name was misspelled on the test dated May 25.
4
The September 18 jurisdiction trial proceeded by way of a trial on the
documents. The court announced that, should it take jurisdiction, the parties
reached a settlement regarding disposition. The court invited the parties to
comment, but no counsel spoke. During closing argument for the jurisdiction
trial, all parties acknowledged a settlement of the disposition issues. The
court took jurisdiction over A.I., finding there would be a substantial danger
to his physical health, safety, protection or physical or emotional well-being if
he were returned home and no reasonable means existed by which his
physical health could be protected without removal.
II.
DISCUSSION
A. Jurisdictional Orders
To establish jurisdiction under section 300, subdivision (b)(1), the
Agency must show: “(1) the parent’s . . . neglectful conduct or failure or
inability to protect the child; (2) causation; and (3) serious physical harm or
illness or a substantial risk of serious physical harm or illness.” (In re Cole L.
(2021) 70 Cal.App.5th 591, 601.) A parent’s past behavior can be relevant to
current circumstances if there is reason to believe that the behavior will
continue. (Id. at p. 602.) To establish a current risk of harm at the time of
the hearing, there must be more than mere speculation the behavior will
recur. (Ibid.) Facts supporting jurisdiction under section 300 are
cumulative, and the court must consider all circumstances affecting the child,
regardless of where they occur. (In re T.V. (2013) 217 Cal.App.4th 126, 133.)
A jurisdictional finding requires proof by a preponderance of evidence.
(§ 355, subd. (a).) We review a juvenile court’s jurisdictional order for
substantial evidence. (In re R.T. (2017) 3 Cal.5th 622, 633.) Under that
standard, we review the entire record in the light most favorable to the order,
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resolving all conflicts in favor of the juvenile court’s findings, and draw all
reasonable inferences to support the judgment. (In re Alexis E. (2009)
171 Cal.App.4th 438, 450–451.) We do not reweigh the evidence or reassess
witness credibility but determine only whether the record contains evidence
that is “ ‘reasonable, credible, and of solid value’; such that a reasonable trier
of fact could make such findings.” (In re Sheila B. (1993) 19 Cal.App.4th 187,
199; In re I.J. (2013) 56 Cal.4th 766, 773.) We uphold the juvenile court’s
findings unless they are unsupported as a matter of law. (See Jamieson v.
City Council of the City of Carpinteria (2012) 204 Cal.App.4th 755, 763.)
The petition alleged that A.I. faced a substantial risk of serious
physical harm based on Mother’s and Father’s untreated substance abuse
and their resulting inability to adequately supervise or protect him. (§ 300,
subd. (b)(1).) Mother argues insufficient evidence supported jurisdiction
because the Agency failed to establish A.I. remained at substantial risk of
harm at the time of the jurisdictional hearing. She correctly notes that
substance abuse alone does not support jurisdiction absent evidence the
parent is unable to provide regular care and that the child is therefore at
substantial risk of serious physical harm. (In re N.R. (2023) 15 Cal.5th 520,
558–559.)
Mother’s argument, however, minimizes the significance of A.I.’s age
and vulnerability. As our Supreme Court has recognized, “a child’s youth and
maturity level can bear upon the care that the child may require and whether
a parent’s or guardian’s substance abuse places the child at substantial risk
of serious physical harm.” (In re N.R., supra, 15 Cal.5th at p. 559.) At the
time of the jurisdiction hearing, A.I. was only five months old. An infant of
that age is entirely dependent on a caregiver’s constant vigilance and sound
judgment. On this record, the juvenile court could reasonably conclude
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Mother’s history of fentanyl use, coupled with her fragile recovery, posed a
substantial risk to A.I.’s safety and well-being.
First, substantial evidence supported the court’s implied finding that
Mother had not yet achieved meaningful stability or insight into her
addiction. She gave inconsistent accounts regarding the duration and extent
of her fentanyl use. At the hospital, she reported that she began using
fentanyl in 2021 but later told a social worker that her use began in 2023
during the pandemic. Her nurse likewise reported that Mother provided
conflicting information regarding both the frequency and quantity of her
fentanyl use. The nurse described Mother as “articulate” and as someone
who “knows all of the right things to say to fly under the radar.” Mother also
demonstrated familiarity with how long fentanyl remained in the body so she
could determine when she would test negative, prompting the nurse to
describe her as “the ‘scariest type of user’ because they are ‘slippery’ with
their drug use.”
From this evidence, the juvenile court could reasonably believe that
Mother continued to minimize and conceal the severity of her substance
abuse. Despite years of fentanyl use, daily use during her pregnancy, and the
devastating effects that use had on A.I., Mother denied being an addict. She
concealed her substance abuse from her support system because she did not
want others to know she was using. This evidence supports a finding Mother
lacked insight into the seriousness of her addiction and remained vulnerable
to relapse.
The severity of Mother’s addiction was underscored by the
consequences to A.I. She used fentanyl daily throughout her pregnancy,
causing A.I. to be born fentanyl-positive, suffer severe withdrawal symptoms
requiring the “maximum dosage of morphine,” and remain hospitalized in the
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neonatal intensive care unit for nearly two months. Thus, the risk posed by
Mother’s substance abuse was not theoretical. Her drug use had already
caused significant physical harm to A.I.
Substantial evidence also supported the juvenile court’s determination
that the risk remained ongoing at the time of the jurisdiction hearing. (In re
J.N. (2010) 181 Cal.App.4th 1010, 1025 [trial court cannot make a
jurisdictional finding based on a situation that is unlikely to reoccur].)
Although Mother had completed inpatient treatment, her actions following
discharge raised legitimate concerns regarding the stability of her recovery.
She elected to leave treatment early, declined the social worker’s
recommendations that she remain in treatment, enter sober living, or
exercise overnight visits at the maternal grandmother’s home. She instead
returned to Father, who also struggled with substance abuse. Although
Mother identified obtaining a sponsor and attending NA meetings as part of
her sobriety plan, she failed to do either.
Most significantly, within weeks of completing inpatient treatment and
returning home, Mother again tested positive for fentanyl. According to the
testing facility, the results were consistent with fentanyl use one or two days
before the test. Rather than acknowledge a relapse, Mother suggested she
had been “ ‘set up.’ ” The juvenile court could reasonably view this response
as further evidence that Mother had not fully accepted responsibility for her
substance abuse and remained unable to recognize the ongoing risks it posed.
Nor was Mother denied an opportunity to challenge the positive test
result. She requested a continuance to consult with an expert she located to
review the test results. Finding exceptional circumstances existed, the court
granted the continuance. When the matter reconvened 14 days later, Mother
had no further evidence to present and rested. The juvenile court was
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therefore entitled to credit the test results and consider them as compelling
evidence that Mother’s substance abuse issues remained unresolved.
The juvenile court could also reasonably consider the absence of a
meaningful safety network. Mother intentionally concealed her addiction
from her support system and declined to identify a safety network because
she did not want others to learn of her substance abuse. As a result, if she
relapsed while caring for A.I., there would be no sober support person
positioned to recognize the problem and intervene. The only person likely to
be aware of the relapse would be Father, who also suffered from substance
abuse. Given A.I.’s complete dependence on his caregivers, the court could
reasonably conclude that these circumstances created a substantial risk of
serious physical harm.
Viewed as a whole, the evidence showed far more than a history of
drug use. It showed years of fentanyl abuse, daily use throughout pregnancy,
severe harm to a newborn child, minimization of the addiction, concealment
from potential support systems, and a positive fentanyl test before the
jurisdiction hearing. Under the deferential substantial evidence standard,
that evidence amply supports the juvenile court’s finding that Mother’s
unresolved substance abuse placed A.I. at a substantial risk of physical
harm.5
B. Disposition Orders
Mother contends the juvenile court’s disposition orders must be
reversed because insufficient evidence established that returning A.I. to her
5 Because substantial evidence supports jurisdiction based on Mother’s
conduct, we need not consider whether Father’s conduct independently
supports jurisdiction. (In re B.H. (2024) 103 Cal.App.5th 469, 480 [when
jurisdiction is properly assumed based on one parent’s conduct we need not
consider jurisdictional findings based on the other parent’s conduct].)
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custody would create a substantial danger to his physical health, safety,
protection, or emotional well-being. She further argues reasonable means
existed by which A.I. could be protected without removing him from her
custody. The Agency responds that this portion of the appeal should be
dismissed because Mother did not litigate disposition issues in the juvenile
court and instead agreed to a negotiated disposition. In reply, Mother
asserts: (1) a challenge to the sufficiency of the evidence need not be
preserved by objection; (2) she did not submit on the social worker’s
recommendation; and (3) even if forfeiture applies, we should exercise our
discretion to consider the merits.
Ordinarily, an appellate court will not consider a challenge to a ruling
that could have been, but was not, raised in the trial court. (In re S.B. (2004)
32 Cal.4th 1287, 1293.)6 The forfeiture doctrine serves the important
purpose of affording the trial court an opportunity to correct potential errors
before they become grounds for appeal. (Ibid.) As one court explained, “As a
general rule, a party is precluded from urging on appeal any point not raised
in the trial court. Any other rule would permit a party to play fast and loose
with the administration of justice by deliberately standing by without making
an objection of which he is aware.” (In re Richard K. (1994) 25 Cal.App.4th
580, 590.) At the same time, a substantial evidence challenge ordinarily is
not forfeited by failure to raise it in the juvenile court. (In re Jayden A.
(2025) 111 Cal.App.5th 1334, 1338 (Jayden A.).)
This case, however, involves more than a failure to object. The record
reflects that Mother, along with all other parties, agreed to resolve the
disposition issues through settlement. Mother did not argue that the
6 In re S.B. was superseded by statute on another ground as stated in
In re M.R. (2005) 132 Cal.App.4th 269, 273–274.
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evidence did not support removal, request that A.I. be placed in her care,
object to the removal order, or challenge the court’s finding—made under the
clear and convincing standard—that returning A.I. to her custody would pose
a substantial danger. Indeed, the juvenile court heard no contested
argument regarding disposition.
Instead, the Agency represented, without objection, that the parties
had reached a settlement under which A.I. would be placed in a foster home
and visitation would occur as discussed in chambers. While Mother argues
the settlement only addressed visitation, placement in foster care necessarily
entailed removal from parental custody. Her counsel stated that Mother
“agreed with the settlement,” under which she would resume overnight
visitation at the maternal grandmother’s home. An agreement to overnight
visitation is inconsistent with the position that A.I. should have been
returned to Mother’s custody. If Mother believed the parties’ agreement did
not include removal, it was incumbent upon her to clarify that point; she did
not do so.
Nor do the authorities cited by Mother in her reply brief support the
proposition that a parent may agree to a disposition order and later challenge
that same order on appeal. In In re Jennifer V. (1988) 197 Cal.App.3d 1206,
the court held only that a stipulation to a dispositional order does not
necessarily constitute consent to the antecedent jurisdictional order. (Id. at
pp. 1209–1210.) Likewise, in Jayden A., supra, 111 Cal.App.5th 1334, the
father’s submission was limited to the issue of reunification services and did
not amount to an agreement regarding removal itself. (Id. at p. 1346.) Here,
by contrast, the record reflects an agreement resolving the disposition issues,
including foster placement and visitation.
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Under longstanding principles, “[a] person who consents to an act is not
wronged by it” (Civ. Code, § 3515), and “[a]cquiescence in error takes away
the right of objecting to it” (Civ. Code, § 3516). Mother knowingly
participated in a negotiated resolution of the disposition issues and accepted
a placement arrangement premised on A.I. remaining in foster care while she
exercised visitation. Having secured the benefits of that agreement, Mother
cannot now repudiate its central terms and seek appellate reversal of the
very order to which she assented. Accordingly, Mother’s challenge to the
disposition orders is not cognizable on appeal.
III.
DISPOSITION
The jurisdictional orders are affirmed. The appeal from the disposition
orders is dismissed.
KELETY, Acting P. J.
WE CONCUR:
CASTILLO, J.
RUBIN, J.
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