L.A. Cty. Dep't of Child. & Fam. Serv. v. Amber C. (In re Kieran S.)

320 Cal.Rptr.3d 673

IN RE KIERAN S., a Person Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Amber C., Defendant and Appellant.

B318672

Court of Appeal, Second District, Division 7.

Filed April 18, 2024

As Modified May 6, 2024

APPEAL from orders of the Superior Court of Los Angeles County, Susan Ser, Judge. Affirmed. (Los Angeles County Super. Ct. No. 19LJJP00321A)

Jonathan Grossman, under appointment by the Court of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.

SEGAL, Acting P. J.

INTRODUCTION

Amber C., mother of then two-year-old Kieran S., appeals from the juvenile court’s jurisdiction findings and disposition orders after the court sustained a petition by the Los Angeles County Department of Children and Family Services under Welfare and Institutions Code section 300, subdivision (b). In our prior opinion we affirmed the juvenile court’s findings and orders. The Supreme Court granted review and transferred the case back to us with directions to vacate our prior opinion and reconsider our decision in light of In re N.R. (2023) 15 Cal.5th 520, 316 Cal. Rptr.3d 1, 539 P.3d 417, which held, among other things, substance abuse is not prima facie evidence of a parent’s inability to provide regular care to a child of tender years (six years old or younger). Because under In re N.R. Amber’s substance abuse still put Kieran at a substantial risk of serious physical harm, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Department Investigates the Family, Amber Absconds with Kieran, and the Juvenile Court Sustains a Petition Under Section 300

Kieran’s parents are Amber and Victor S. (not a party to this appeal). In April 2019, when Kieran was two months old, the Department received a referral stating the parents used drugs in the child’s presence. Victor admitted he used marijuana; Amber tested positive for amphetamine, methamphetamine, and morphine. An investigation found Amber was living with Kieran in a home where other individuals were abusing drugs. Despite her positive test results, Amber denied using methamphetamine, insisted her positive test results were falsified, and claimed she did not use any drugs "while with [Kieran]." After failing to cooperate with welfare checks and evading the Department, Amber absconded with Kieran. The Department filed a petition alleging her substance abuse posed a substantial risk of serious physical harm to Kieran.

For nearly two years, Amber had no communication with the Department and could not be found. In October 2021 a detective from the Anderson Police Department found Amber and Kieran in Shasta County, and Amber admitted she had recently used methamphetamine and had a "problem with meth." Though Amber’s home in Shasta County was clean and Kieran appeared well, law enforcement found a methamphetamine pipe in an unattached room of the house, although at the time of the inspection the room "appeared to be secured from access from Kieran." The detective reported that, because "there was a lot of traffic in and out of the home," there was a suspicion it was a "drug home." Amber admitted to the detective that she had been addicted to opiates for 10 years and that she used methamphetamine recreationally. Victor confirmed Amber used drugs. On December 1, 2021 the Department filed an amended petition in Los Angeles County (where Amber had returned and Kieran had been placed in foster care) that included allegations Amber exposed Kieran to risk of harm by absconding with him.

At the January 28, 2022 jurisdiction hearing on the amended petition the juvenile court sustained counts under section 300, subdivision (b), alleging Amber abused substances, failed to protect Kieran from Victor’s mental and emotional issues, and absconded with Kieran. At the February 17, 2022 disposition hearing the juvenile court declared Kieran a dependent child of the court, removed him from his parents, ordered Amber to attend a drug treatment program, and ordered reunification services.

B. We Affirm the Juvenile Court’s Jurisdiction Findings and Disposition Orders

Amber appealed from the jurisdiction findings and disposition orders.¹ Amber argued that there was no evidence she was under the influence of drugs when Kieran was detained and that there was no evidence of neglect or risk of harm to Kieran in her care. We held substantial evidence supported the juvenile court’s finding Amber’s drug abuse created a substantial risk of physical harm to Kieran. We explained that, under In re Drake M. (2012) 211 Cal.App.4th 754, 149 Cal.Rptr.3d 875, disapproved in In re N.R., supra, 15 Cal.5th at page 560, footnote 18, 316 Cal.Rptr.3d 1, 539 P.3d 417, because Kieran was a child under the age of six, the juvenile court’s finding Amber was abusing substances created a rebuttable presumption of a substantial risk of physical harm to Kieran. We also concluded Amber did not rebut this presumption.

C. The Supreme Court Grants Review and Transfers the Cause

The Supreme Court granted Amber’s petition for review and transferred the case to us with directions to vacate our decision and reconsider Amber's appeal in light of In re N.R., supra, 15 Cal.5th 520, 316 Cal.Rptr.3d 1, 539 P.3d 417. In that case the Supreme Court held that a finding of substance abuse under section 300, subdivision (b)(1)(D), requires neither "a diagnosis by a medical professional" nor "satisfaction of the prevailing criteria for a substance use disorder as specified within the Diagnostic and Statistical Manual of Mental Disorders" and that a parent’s substance abuse, without more, is not "prima facie evidence of … an inability to provide regular care for a child" or of a "substantial risk of serious physical harm when the child is of ‘tender years …."’ (Id. at pp. 531, 554, 560-561, 316 Cal.Rptr.3d 1, 539 P.3d 417.) The Supreme Court also held that, though the "tender years presumption" was "inconsistent with the Legislature’s intent," the "age of a child may bear upon whether substance abuse renders a parent or guardian unable to provide that child with regular care, and whether the child is thereby placed at substantial risk of serious physical harm or illness." (Id. at pp. 531-532, 316 Cal.Rptr.3d 1, 539 P.3d 417.)

The parties filed supplemental briefs pursuant to California Rules of Court, rule 8.200(b). In her supplemental brief, Amber contends her drug use was not excessive, an argument she had not previously made. She also argues her drug use and conduct in absconding with Kieran did not expose Kieran to risk of physical harm. The Department contends that Amber’s ongoing drag use compromised her ability to care for and protect Kieran and that the court should not allow Amber to capitalize on the fact she was a fugitive for two years by arguing the Department submitted insufficient evidence of risk of harm to Kieran.

DISCUSSION

A. Applicable Law and Standard of Review

[1, 2] The purpose of section 300 " " ‘is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.’ " " (In re N.R., supra, 15 Cal.5th at p. 537, 316 Cal. Rptr.3d 1, 539 P.3d 417; see § 300.2, subd. (a).) "Although section 300 requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citations], the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. [Citations.] The court may consider past events in deciding whether a child presently needs the court’s protection." (In re Cole L. (2021) 70 Cal. App.5th 591, 601-602, 285 Cal.Rptr,3d 464.)

[3] 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 the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of a custodian with whom the child has been left.’ A jurisdiction finding under section 300, subdivision (b)(1), requires the Department to prove three elements: (1) the parent’s or guardian’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., supra, 70 Cal.App.5th at p. 601, 285 Cal.Rptr.3d 464.)²

[4–7] " " "In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.’ " " [Citations.] However, "[s]ubstantial evidence is not synonymous with any evidence. [Citation.] To be substantial, the evidence must be of ponderable legal significance and must be reasonable in nature, credible, and of solid value.’ " " (In re S.F. (2023) 91 Cal.App.5th 696, 713, 308 Cal.Rptr.3d 573.)

[8] Finally, "[a]pplication of the doctrine of justiciability in the dependency...