In re E.I.
Filed 4/12/13 In re E.I. CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
In re E.I., a Person Coming
Under the Juvenile Court Law.
B242762
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
I.P. et al.,
Defendants and Appellants.
(Los Angeles
County
Super. Ct.
No. CK92491)
APPEAL from
orders of the
County Superior Court.
Robert L. Stevenson, Referee. Affirmed.
Neale B.
Gold, under appointment by the Court of Appeal, for Defendant and Appellant
I.P.
Lauren K.
Johnson, under appointment by the Court of Appeal, for Defendant and Appellant
E.I.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Stephen
D. Watson, Senior Associate County Counsel, for Plaintiff and Respondent.
___________________________
The juvenile dependency court made
jurisdictional findings that I.P. (Mother) and E.I. (Father) were abusing
narcotics, rendering them incapable of caring for their infant son, E.I. The court entered dispositional orders that
included removing E.I. from the family home.
Mother and Father appeal. We
affirm.
FACTS
Father and Mother are the parents of
one child: E.I, born in December
2011. On March 1, 2012, the Los Angeles County
(DCFS) assigned a Case Social Worker (CSW) to respond to an anonymous referral
that Father and Mother smoked marijuana in front of E.I., and that Father
smoked methamphetamine in front of E.I.
At the time of the referral, E.I. was not yet four months old. That same day, CSW conducted an unannounced
visit to Father and Mother’s home, where they both lived with E.I. When CSW arrived, Father and Mother granted
the CSW permission to enter the home.
The lock on the entry door to the apartment was broken. Upon entering, she saw that the home was
dirty and small; empty water bottles covered the floor and graffiti adorned the
walls. A queen size bed took up most of
the space in the apartment, while a toddler bed was in the corner of the room.
CSW explained the allegations in the referral to
Father and Mother. Both parents denied a
history of methamphetamine use, but admitted to using marijuana. Mother stated she used marijuana twice a week
with a prescription. She showed CSW a
copy of her prescription, which was set to expire on February 3, 2013. Father
admitted he smoked marijuana daily, and admitted that he did not have a
prescription for the drug. Both Mother
and Father told CSW that neither of them smoked in front of E.I.
CSW then interviewed Father. Father had several gang-related tattoos, but
denied he was part of any gang. During
CSW’s interview with Father, he was agitated and spoke rapidly when he
answered. Father explained that he was
not a drug user and that he was not under the influence of any drugs that
day. Father disclosed that both he and
Mother were in special education classes and had trouble understanding the questions. Shortly after, Father requested that CSW
leave his home. CSW explained that the
only goal of the visit was an “Up Front Assessment†to determine the services
needed by the family and ensure the safety and best interest of the child. When CSW requested that Father and Mother
sign a safety plan, Father became more agitated and stated that he did not want
to be part of the investigation. At that
point, Father started to leave the home and blurted out, “I did a line of
crystal today!†Father’s outburst
prompted Mother to tear up and explain
that she did not know he used methamphetamine.
She admitted to a history of using the substance herself briefly when
she was younger.
Following the parents’ emotional outpouring, Father
left the apartment and talked with the apartment manager, David. Father explained to David that CSW was going
to take E.I. from his and Mother’s custody.
David urged Father to cooperate and Father returned to the apartment. CSW then interviewed David who said he had no
concerns about Father and Mother’s capacity to care for E.I. nor did he have
any suspicion of domestic violence in the home.
David indicated that E.I.’s grandmother, A.P., would have more
information.
CSW explained to Mother and Father her concern for the
family’s failure to provide accurate information. As CSW was leaving the family’s apartment,
Father and Mother grew concerned that DCFS was going to remove the infant from
their custody. Father grabbed CSW by the
waist and pleaded with her not to leave.
Meanwhile, A.P. arrived at the family home. A.P. suggested that Mother leave with E.I. to
avoid detention. At 10:30
p.m.,
Mother put E.I. in a blanket and began to walk out of the apartment with A.P.
behind her. The CSW explained that a
removal warrant would be issued for E.I. if Mother attempted to flee. Father pleaded with Mother not to leave. Mother returned with E.I. and remained in
front of the building, clutching the child and crying that no one was going to
take E.I. from her. A.P. finally took
the child that evening with instructions that she call DCFS if Father tried to
enter her home or if Mother tried to take the child out of A.P.’s home.
CSW made steps to initiate a safety plan to ensure
that Father did not care for E.I. while under the influence of drugs. Mother and Father agreed to drug testing the
next day in addition to an up-front assessment as part of the safety plan. CSW interviewed A.P. and discovered that
Father and Mother previously separated due to fights that included domestic abuse,
but reunited and had been together for the preceding four months. A.P. also disclosed her concerns about Mother
and Father’s relationship. She told
CSW she believed that Father was addicted to drugs and physically abused
Mother. When CSW asked A.P. if Father or
Mother abused E.I., A.P. said that they did not. When CSW asked Mother about any prior
referrals to DCFS, Mother denied any prior involvement with DCFS, but then
admitted there had been some previous contacts.
A.P. told CSW that she (A.P.) did not have any prior involvement with
DCFS.
On March 2, 2012, Mother submitted to a drug
test; she tested positive for cannabinoids.
She also tested positive on March 7, April 13, and four other times
leading up to April 20. Mother failed to
appear for tests on April 4, and April 16.
On March 5, 2012, CSW spoke with Father’s
parole officer. The parole officer
indicated that Father was an active 18th Street gang member with a history
of drug use. Father’s parole officer
reviewed parole records for Mother and informed CSW that Mother’s parole file
showed she had tested positive for methamphetamines in 2010.
In a follow-up interview on March 6, 2012, Mother admitted to having a mental illness
diagnosis, and to attempting suicide when she was in a juvenile detention camp
when she was younger. Mother stated
that, while detained, she was caught smoking marijuana and avoided being
charged by pretending to be suicidal.
Mother likewise admitted she was behind on rent due to the expense of
food and diapers for E.I., but had an arrangement with the building manager to
catch up on her payments.
CSW spoke to Mother’s parole officer, who expressed
his concern for the child due to Father’s gang activity and general
lifestyle. Also, the parole officer
stated that Mother frequently was removed from apartments for failure to pay
rent. He felt that Mother’s family was
reluctant to take care of her. The
parole officer stated his opinion that Mother was unstable and unreliable, and
expressed concern regarding her parenting ability.
On March 6, 2012, a judge issued a removal
warrant authorizing DCFS to take E.I. from the care of Father and Mother. When CSW arrived at A.P.’s residence, E.I.
was not there. A.P.’s roommate informed
CSW that E.I. was at A.P.’s workplace.
However, when CSW arrived at the workplace, the child was not
there. A.P. informed CSW that E.I. was
with Mother’s sister. CSW took custody
of E.I. from Mother’s sister’s home without incident.
On March 9, 2012, DCFS filed a
of E.I. (Welf. & Inst. Code,
§ 300.)
title="">[1] Pursuant to section 300, subdivision (b), the
petition alleged:
“[Father] has a
history of substance abuse and is a current user of methamphetamine and
marijuana which renders [him] incapable of providing regular care for the
child. On 3/1/12, the father was under
the influence of methamphetamine, while the child was in the father’s care and
supervision. The father’s substance
abuse endangers the child’s physical health and safety and creates a
detrimental home environment, placing the child at risk of physical harm and
damage.â€
“[Mother] has a history of
substance abuse including, methamphetamine and is a current abuser of marijuana
which renders the child’s mother incapable of providing regular care for the
child. On 3/2/12, the mother had a
positive toxicology screen for marijuana.
The mother’s substance abuse endangers the child’s physical health and
safety and creates a detrimental home environment, placing the child at risk of
physical harm and damage.â€
The dependency court detained E.I.
and ordered monitored visits for each of the parents. The court ordered drug tests for each parent
and a prerelease investigation report as to the Mother.
On April 23, 2012, DCFS filed a jurisdiction/disposition
report. The report indicated no prior
child welfare history, but showed a criminal history for both Mother and
Father. Mother suffered a series of
convictions beginning in 2003. They
included failure to appear, vandalism,
battery, carjacking, robbery and petty theft. She spent two years in prison for the
robbery. Father’s offenses began in 1998
and include possession of cocaine, carjacking, battery with serious bodily
injury, trespass, and violations of a gang injunction. Father served three years in prison for the
carjacking.
Mother stated in the report that she had discontinued
smoking while pregnant and breast feeding, however returned to using marijuana
to treat her headaches when Tylenol was not working. Father claimed in the report that DCFS was
called on March 1, 2012, as a revenge scheme by his former girlfriend. He stated that Mother and the reporting caller
recently had an argument on Facebook that resulted in the report to DCFS. The report also showed that E.I. was healthy
and that visitations with Mother were occurring regularly. The parents reported no current drug abuse,
but Mother’s drug tests showed the presence of tetrahydrocannabinol (THC). The parents showed a willingness to work with
the court for reunification.
In the beginning of April 2012, Mother reportedly
separated from Father after an argument about his refusal to turn down very
loud music which devolved into a shoving match between the two. Five days later, Mother reconciled with
Father. She promised that the two of
them would enroll in programs for reunification. Five days after that, Mother and Father were
evicted from their apartment. On April
27, Father was incarcerated for not reporting to his parole officer. On May 3, Mother moved out again, and
provided DCFS with a new address where she was not living with Father. Shortly thereafter, Mother voluntarily
enrolled in a substance abuse program at Homeboy Industries.
At the jurisdiction hearing on May
21, 2012, the court sustained the allegations in the petition, and found E.I.
to be a person described under section 300, subdivision (b). The court ordered that Mother’s THC levels go
down and ordered that E.I. be placed in A.P.’s home. The court granted DCFS discretion to allow
Mother to live in A.P.’s home.
In making its findings, the court
explained: “I have a four-month-old
child here. Mother’s marijuana use, I
think, is extremely high to be taking care of a four-month-old child. If she is caring for the child, whether or
not she smokes in front of the child or not, she is impaired at that level and
that puts the child at risk.â€
In July 2012, DCFS reported that Mother had tested
positive for cannabinoids on every occasion she was tested between March 2 and
June 15, 2012. She also failed to appear
four times during the same period.
Likewise, Father tested positive for cannabinoids on every occasion he
tested between March 5 and April 30, 2012, and failed to appear several
times.
At the disposition hearing on July 2, 2012, the
juvenile court ordered E.I. removed from the family home, and placed in the
custody of DCFS for suitable placement.
The court ordered both Mother and Father be subject to drug and alcohol
testing and that they attend Alcoholics or Narcotics Anonymous meetings and
participate in parenting classes. The
court ordered monitored visitation rights for the parents, with DCFS having
discretion to liberalize visitation.
Mother and Father filed a timely
DISCUSSION
I. Mootness
As an initial matter, DCFS contends that review of
Mother’s appeal is moot in that E.I. will remain a dependent of the juvenile
court due to the jurisdictional findings as to Father. Mother contends that review is appropriate
because upholding an unsupported finding may have implications for her as the
dependency case proceeds. We find that
review of Mother’s contentions is appropriate because the jurisdictional orders
serve as the basis for dispositional orders and may be prejudicial in the
current or future dependency proceedings.
(See In re Drake M. (2012) 211
Cal.App.4th 754, 762-763 (Drake M.).)
We agree with DCFS that “a jurisdictional finding good
against one parent is good against both†(see In re Alysha S. (1996) 51 Cal.App.4th 393, 397), and that, once a
child is within the jurisdiction of the dependency court, the court may fashion
its dispositional orders as to each parent, according to the circumstances of
each case. Under such a rule, a
“non-offending parent,†may still be subject to dispositional ordered as
appropriate to the circumstances of the case.
Thus, ordinarily Mother’s jurisdictional challenge would serve little
purpose if there is evidence –– which there is –– to support the dependency
court’s jurisdiction based on Father’s behavior. However, where findings could affect further
orders in the dependency proceeding, or where findings may adversely affect a
parent without affecting the best interest of a dependent child, the court may
address the challenges of one parent. (
1060, 1065.) We are satisfied that this
is such a case justifying appellate review.
II. Jurisdiction
Mother argues there was no
substantial evidence to support the assertion of jurisdiction over E.I. We disagree.
“ ‘We review the juvenile court’s
jurisdictional findings for sufficiency of the evidence. [Citations.]
We review the record to determine whether there is any substantial evidence
to support the juvenile court’s conclusions, and we resolve all conflicts and
make all reasonable inferences from the evidence to uphold the court’s orders,
if possible. [Citation.]’ [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.]â€
[Citation.]’ [Citation.]†(In re
V.M. (2010) 191 Cal.App.4th 245, 252.)
Under section 300, subdivision (b),
the juvenile court may assert jurisdiction over a child when “[t]he child has
suffered, or there is a substantial risk that the child will suffer,
the failure or inability of his or her parent
or guardian to adequately supervise or protect the child . . . or by the
willful or negligent failure of the parent or guardian to provide the child
with adequate food, clothing, shelter, or medical treatment, 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. . . . The child shall continue to be
a dependent child pursuant to this subdivision only so long as is necessary to
protect the child from risk of suffering serious physical harm or illness.â€
Thus, “[t]he three elements
for jurisdiction under section 300, subdivision (b) are:
‘ “(1) neglectful conduct by the parent in one of the specified
forms; (2) causation; and (3) ‘serious physical harm or illness’ to the
[child], or a ‘substantial risk’ of such harm or illness.†’ [Citations.]â€
(In re B.T. (2011) 193
Cal.App.4th 685, 692.)
There was substantial evidence that
Mother’s substance abuse placed E.I. at substantial risk of serious physical
harm or illness. There is not a real question here that Mother
is a substance abuser. Indeed, Mother
recognized her own substance abuse problem by voluntarily enrolling in classes
to address the issue. Further, she
admits smoking marijuana illegally prior to obtaining a prescription. Mother indicated she continued to smoke
marijuana while responsible for care of her then four-month-old infant. Further, even though the court warned Mother
that she had to decrease the levels of her THC intake, she continued to use the
drug and to test positive for marijuana use.
There is also evidence the substance abuse placed E.I.
at risk of serious physical harm or illness.
Mother admits she smoked marijuana on the balcony adjacent to her small
apartment while she was providing care for E.I.
Mother and Father had a contentious relationship, marked by fighting and
domestic abuse. Mother was unable to
provide a stable home for the infant, as she was consistently moving from her
apartments either for a failure to pay rent, or to temporarily separate from
Father. As the court stated, “I have a
four-month-old child here. Mother’s
marijuana use, I think, is extremely high to be taking care of a four-month-old
child. If she is caring for the child,
whether or not she smokes in front of the child or not, she is impaired at that
level and that puts the child at risk.â€
In re Alexis E. (2009) 171 Cal.App.4th 438,
is illustrative. In Alexis E., the father
appealed from a finding that he was a substance abuser and his conduct placed
his children at a substantial risk of harm.
(Id. at p. 440.) The father legally smoked marijuana and
admittedly watched over the children under the influence of drugs. (Id. at
p. 442.) While the court in
marijuana, without more, cannot
support a jurisdiction finding,†there was substantial evidence to show the
“more†necessary to support the jurisdiction finding. (Id.
at p. 453.) There, father admitted using
marijuana illegally prior to a psychologist prescribing him marijuana. Father used marijuana while his children were
home, which constituted a risk of harm to the minors from the marijuana
smoke. Further, father’s use of
marijuana caused his mood to decline as demonstrated by irritability, lack of
patience, yelling, and violence after smoking the drug. (Ibid.) These facts lead the court to affirm the
dependency court’s findings. Mother
contends that Alexis E. is
distinguishable. We disagree. In this case, as in Alexis E., we have pointed out that there is requisite “moreâ€
evidence to support the jurisdictional finding.
Mother argues the recent case of Drake M., supra, 211 Cal.App.4th 754, supports her
contentions. In Drake M., the dependency
court found jurisdiction over a child whose father smoked legal marijuana. The Court of Appeal addressed the issue of
whether habitually smoking legal marijuana constituted conduct that rendered a
father incapable of providing regular care and supervision to a child. (Ibid.) The court found that such conduct could fall
within the purview of section 300, subdivision (b), if a child has suffered or
was at substantial risk for suffering serious
of: (1) a parent’s inability to provide
regular care due to substance abuse or (2) the parent’s failure to adequately
supervise or protect the child. (
The Drake M.
court followed an early case and held that a finding of substance abuse must be
based on “evidence sufficient to: (1)
show that the parent or guardian at issue had been diagnosed as having a
current substance abuse problem by a medical professional or (2) establish that
the parent or guardian at issue has a current substance abuse problem as
defined in the [American Psychiatric Association’s Diagnostic and Statistical
Manual of Mental Disorders].†(
As to children of “tender years,†the court stated “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.†(Id. at p. 767.)
The Court of Appeal in Drake M. determined that DCFS had failed to prove the father was a
substance abuser in the absence of evidence from a
there was no evidence that the father suffered from any recurrent substance
abuse problems. (Drake M., supra, 211
Cal.App.4th at pp. 766-767.) The father
had a legal, medical recommendation to use marijuana for recurring
adequately care for the child. (
was no evidence of abuse in the home; and no evidence showed that the child was
not supervised. (Ibid.) Thus, the Court of
Appeal overturned the dependency court’s findings.
We find Drake M.
distinguishable. As we have pointed
out, there is substantial evidence to show that Mother is a substance abuser
and it is affecting her ability to care for an infant child. Even under Drake M., this is sufficient to prove that Mother is unable to
provide care for E.I., clearly a child of “tender years,†rendering the infant
at substantial risk of physical harm.
Also unlike Drake M., Mother
here illegally used drugs in the past and though she now has a prescription for
medicinal marijuana, she uses it in markedly high amounts. She is unable to maintain a consistent home
for her child, and there is domestic abuse in her homes. Thus, we affirm the dependency court’s
findings.
Father’s opening brief on appeal joins in Mother’s
opening brief on appeal. However, he has
not presented any independent argument
based upon the evidence of his actions leading to DCFS’s involvement with the
family. We construe Father’s opening
brief to contend that the dependency court’s finding of jurisdiction over E.I.
is not supported by substantial evidence because of his own actions. Under the substantial evidence standard of
review discussed above in addressing Mother’s appeal, we disagree. (See In
re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) The evidence concerning Father is, of course,
different from the evidence concerning Mother.
The evidence shows Father current use of illegal narcotics, including
methamphetamine. This is sufficient to
sustain the dependency court’s finding of jurisdiction. (Jennifer
A. v. Superior Court (2004) 117
Cal.App.4th 1322.)
The dependency
court’s orders are affirmed.
BIGELOW,
P. J.
We concur:
RUBIN,
J.
FLIER, J.
name="_ftn1" title="">[1]
section references are to the Welfare and Institutions Code.
