Filed 4/14/14 In re Christopher R. CA2/7

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


In re CHRISTOPHER R. et al., Persons                                 B250806
Coming Under the Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. CK99150)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

CRYSTAL R. et al.,

         Defendants and Appellants.



         APPEAL from orders of the Superior Court of Los Angeles County, Marilyn
Kading Martinez, Juvenile Court Referee. Affirmed.
         Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant, Crystal R.
         Janette Freeman Cochran, under appointment by the Court of Appeal, for
Defendant and Appellant, Frank G.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
          Crystal R., the mother of seven-year-old Christopher R., six-year-old Natalie M.,
three-year-old Francisco M., and infant Brianna G., and Frank G., the presumed father of
Brianna, appeal from the jurisdiction findings and disposition orders declaring the
children dependents of the juvenile court after the court sustained a petition pursuant to
                                                              1
Welfare and Institutions Code section 300, subdivision (b), alleging that Crystal had a
seven-year history of substance abuse and was a current abuser of cocaine rendering her
unable to provide regular care and supervision of her four children and that Frank had a
history of illicit drug abuse and was a current abuser of marijuana rendering him unable
to provide regular care and supervision of Brianna. Crystal does not seriously challenge
the findings and order as to Brianna, who tested positive for cocaine, amphetamine and
methamphetamine at birth, but argues the evidence was insufficient to establish
jurisdiction over her other children or to remove them from her custody. Frank, who is
                             2
the father only of Brianna, likewise does not challenge the court’s findings with respect
to Crystal and Brianna, but contends the evidence of his past marijuana use and criminal
history is insufficient to show he is unable to provide regular care for his child. We
affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
          The Los Angeles County Department of Children and Family Services
(Department) received a child abuse referral after both Crystal and Brianna tested
positive for cocaine at Brianna’s birth. Brianna also tested positive for amphetamine and
methamphetamine. Crystal admitted she had started using cocaine when she was
16 years old (seven years before the filing of the dependency petition in this case) but

1
       Statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
2
       Crystal identified Frank M. as the father of Francisco and Natalie and reported he
was living in Mexico and, as of their detention in April 2013, had not seen them in two
years. She said she had no address or telephone number for Frank M. Crystal, who was
17 years old when Christopher was born, told the social worker she did not know who
Christopher’s father was and could not give her any possible names.
                                               2
insisted she had stopped when she was 17 and had not used the drug since that time. She
denied using cocaine during her pregnancy and could not explain how she and Brianna
had tested positive. Subsequently Crystal claimed she had picked up a small container of
cocaine for someone else during her eighth month of pregnancy and had tasted it to be
sure it was cocaine. Brianna was born three days later, approximately one month before
Crystal’s due date.
       Brianna weighed five pounds one ounce when born and, because of respiratory
issues, had to be fed intravenously and was on oxygen. She remained in the hospital for
25 days but did not have any withdrawal symptoms and no ongoing health issues.
       At the time of the child abuse report Crystal, Christopher (then six years old) and
Francisco (then two years old) were living with a cousin, Estella, and Estella’s family in
Bellflower. Crystal, however, did not know Estella’s address or telephone number.
Natalie (then five years old) was living with a maternal great aunt in Las Vegas. All
three children appeared healthy and had no marks, bruises or other visible signs of abuse.
       Estella watched the two boys when Crystal went out—sometimes returning the
same day; sometimes not until the following day. Crystal did not let Estella know where
she was going when she left the children in her care. Estella told the Department’s social
worker she had no knowledge whether Crystal had a drug problem but confirmed that
Frank, also a relative of hers, smoked marijuana.
       Crystal and Frank had had an “off and on” relationship for 18 months to two years.
Frank said he and Crystal had been separated for approximately six months; he was not
with her when she was pregnant and did not know what she was doing. Apparently when
not with Crystal, Frank lived with his father (Brianna’s paternal grandfather).
       Frank said he was unaware that Crystal used drugs and denied that they had used
cocaine or smoked marijuana together. However, Frank acknowledged he had smoked
marijuana since he was 14 or 15 years old and his use had increased over time to once or
twice each day. He explained he had been shot in the back and smoking marijuana
relaxed him. (Frank had unsuccessfully attempted to obtain a medical marijuana card.)

                                             3
However, Frank said he had completely stopped two weeks prior to Brianna’s birth
because he was going to have a baby soon. Notwithstanding that explanation, Frank was
unsure if he was Brianna’s father and asked for a paternity test. Frank also told the social
worker he was a former gang member and was on probation for vandalism (actually,
post-release community supervision, a form of parole supervised by the probation
department). According to his probation officer, Frank was not in full compliance with
the terms of his release: He had enrolled in a substance abuse program, but not
completed it, and had tested positive for marijuana but no other drugs.
       While Brianna remained in the hospital and Natalie was in Las Vegas, the
Department detained the other two children and filed a dependency petition on behalf of
all four of them on April 24, 2013. The juvenile court found a prima facie case had been
established the children were described by section 300, subdivision (b) (inability of
parent to provide regular care for the child due to substance abuse), and ordered them
detained.
       At the July 17, 2013 jurisdiction and disposition hearing the court sustained the
petition, amended slightly by interlineation, and found the children were described by
section 300, subdivision (b). As sustained, count b-1 provides, “[Crystal] has a seven
year history of substance abuse, and is a current abuser of cocaine, which renders the
mother unable to provide regular care and supervision of the child. The mother used
illicit drugs, during the mother’s pregnancy with [Brianna], and had a positive toxicology
screen for cocaine . . . at the child’s birth. The mother’s substance abuse endangers the
[children’s] physical health and safety, creates a detrimental home environment, and
places the children at risk of physical harm and danger.” As sustained, count b-2
provides, “[Frank] has a history of illicit drug abuse, and is a current abuser of marijuana,
which renders the father unable to provide regular care and supervision of the child. The
father’s abuse of illicit drugs endangers the child’s physical health and safety, and places
the child at risk of physical harm and danger.”



                                              4
       Proceeding to disposition, the court found by clear and convincing evidence that a
substantial danger existed to the children and there were no reasonable means to protect
them without removing them from their parents’ custody. The court ordered the children
committed to the care, custody and control of the Department for suitable placement and
directed the Department to provide reunification services to all four children and Crystal
and to Brianna and Frank. Services for the parents were to include substance abuse
treatment and drug testing, parenting classes, individual counseling and monitored
visitation.
       Both Crystal and Frank filed timely notices of appeal from the jurisdiction
findings and disposition orders.
                                     CONTENTIONS
       Essentially conceding dependency jurisdiction was proper as to Brianna, who was
                                                                           3
born with a positive toxicology screen for cocaine and other illicit drugs, Crystal
contends the evidence of her sporadic drug use was insufficient to support the findings
she was a current substance abuser and Christopher, Natalie and Francisco were at
substantial risk of serious physical harm justifying the exercise of the juvenile court’s
jurisdiction. In addition, even if jurisdiction was appropriately extended over all four
children, Crystal argues in-home support services could have been provided and there
was insufficient evidence that removal of the three older children was necessary for their
protection. Frank contends the evidence of his past marijuana use and criminal history
was insufficient to support the finding he could not care for Brianna or to justify


3       In the introduction to her opening brief Crystal asserts, “The children in this case
were not similarly situated; if this Court finds that Brianna was at risk because she was an
infant, that does not mean the other children were necessarily at a similar risk.” Then, in
the first paragraph of the argument section of her brief, Crystal states, “Here, there was
no showing of any kind that Crystal’s sporadic drug use negatively impacted her
parenting to the point where her children, apart from Brianna, were at substantial risk of
serious physical harm and that juvenile court jurisdiction was necessary.” Crystal does
not otherwise address the evidence at the jurisdiction and disposition hearing as it relates
to Brianna.
                                              5
removing her from his custody. Frank also contends the court lacked an adequate basis
for ordering him to participate in a full substance abuse program or individual counseling
or to restrict him to monitored visits.
                                          DISCUSSION
       1. The Governing Statute and Standard of Review
       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.” (§ 300.2; see In re
Giovanni F. (2010) 184 Cal.App.4th 594, 599.) Section 300, subdivision (b), 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.”
       Although section 300 generally requires proof the child is subject to the defined
risk of harm at the time of the jurisdiction hearing (In re Savannah M. (2005)
131 Cal.App.4th 1387, 1396; In re Rocco M. (1991) 1 Cal.App.4th 814, 824 (Rocco M.)),
the court need not wait until a child is seriously abused or injured to assume jurisdiction
and take steps necessary to protect the child. (In re N.M. (2011) 197 Cal.App.4th 159,
165.) The court may consider past events in deciding whether a child presently needs the
court’s protection. (Ibid.) A parent’s “‘[p]ast conduct may be probative of current
conditions’ if there is reason to believe that the conduct will continue.” (In re S.O.
(2002) 103 Cal.App.4th 453, 461.)
       In addition, the Legislature has declared, “The provision of a home environment
free from the negative effects of substance abuse is a necessary condition for the safety,
protection and physical and emotional well-being of the child. Successful participation in

                                               6
a treatment program for substance abuse may be considered in evaluating the home
environment.” (§ 300.2.) Exercise of dependency court jurisdiction under section 300,
subdivision (b), is proper when a child is “of such tender years that the absence of
adequate supervision and care poses an inherent risk to [his or her] health and safety.”
(Rocco M., supra, 1 Cal.App.4th at p. 824.)
       We review the juvenile court’s jurisdictional findings and disposition orders for
substantial evidence. (Los Angeles County Dept. of Children & Family Services v.
Superior Court (2013) 215 Cal.App.4th 962, 966; In re R.C. (2012) 210 Cal.App.4th 930,
940.)4 Under this standard “[w]e 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.” (In re David M. (2005) 134 Cal.App.4th 822, 828; accord, In re
Drake M. (2012) 211 Cal.App.4th 754, 763 (Drake M.); In re Savannah M., supra,
131 Cal.App.4th at p. 1393.)
       2. Substantial Evidence Supports the Count b-1 Jurisdiction Findings and
          Disposition Order with Regard to Crystal
       Crystal used cocaine (and, based on the positive toxicology screen for Brianna at
birth, amphetamine and methamphetamine) while she was pregnant, unquestionably
endangering the health and safety of her unborn child. She also admitted she had used
cocaine in the past although claiming she had stopped using when she was 17 years old.
4
        The burden of proof at the jurisdiction phase in the juvenile court is preponderance
of the evidence; the burden of proof at disposition is clear and convincing evidence.
(§ 355, subd. (a) [jurisdiction findings by preponderance of evidence]; § 361, subd. (c)
[disposition findings by clear and convincing evidence].) Nonetheless, we review both
jurisdiction findings and the disposition order for substantial evidence. (See Sheila S. v.
Superior Court (2000) 84 Cal.App.4th 872, 880-881 [“The ‘clear and convincing’
standard . . . is for the edification and guidance of the trial court and not a standard for
appellant review. [Citations.] ‘“The sufficiency of evidence to establish a given fact,
where the law requires proof of the fact to be clear and convincing, is primarily a
question for the trial court to determine, and if there is substantial evidence to support its
conclusion, the determination is not open to review on appeal.”’”]; see also Crail v.
Blakely (1973) 8 Cal.3d 744, 750; In re I.W. (2009) 180 Cal.App.4th 1517, 1525-1526.)
                                              7
Given her initial false denial of any cocaine use in the days before Brianna was born, the
juvenile court reasonably disbelieved Crystal’s portrayal of limited, sporadic drug use. In
addition, following the children’s detention Crystal missed one drug test, properly
                                                     5
considered the equivalent of a positive test result, and failed to enroll in a substance
abuse program or any other recommended programs. This evidence, taken together with
Crystal’s unstable lifestyle and cavalier attitude toward childcare —she left the children
with her cousin Estella while she went out, sometimes for the entire night, without telling
Estella where she was going or when she would return—fully supports the juvenile
court’s finding that Crystal’s substance abuse endangered all four children’s health and
safety.
          The analysis in Drake M., supra, 211 Cal.App.4th 754 by our colleagues in
Division Three of this court does not compel a different conclusion. As the Drake M.
court explained, when the Legislature rewrote section 300, subdivision (b), in 1987 to
include as a basis for dependency jurisdiction a parent’s inability to provide regular care
for his or her child due to substance abuse, it included no definition of the term
“substance abuse” in the statute. (Id. at p. 765.) Similarly, the legislative history
revealed no specific discussion of how the term should be defined in practice. As a
result, “[d]ependency cases have varied widely in the kinds of parental actions labeled
‘substance abuse.’” (Ibid.)
          To avoid inconsistencies, the Drake M. court proposed a definition of substance
abuse based on the American Psychiatric Association’s Diagnostic and Statistical Manual
of Mental Disorders (4th rev. ed. 2000) (DSM-IV-TR), a definition that had also been
used in an earlier dependency decision involving a somewhat different issue, Jennifer A.
v. Superior Court (2004) 117 Cal.App.4th 1322. (See Drake M., supra, 211 Cal.App.4th
at p. 765.) Following Jennifer A., the Drake M. court held “a finding of substance abuse
for purposes of section 300, subdivision (b), must be based on evidence sufficient to


5
          Crystal did have three negative tests during this period.
                                                8
(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 DSM-IV-TR.
The full definition of ‘substance abuse’ found in the DSM-IV-TR describes the condition
as ‘[a] maladaptive pattern of substance use leading to clinically significant impairment
or distress, as manifested by one (or more) of the following, occurring within a 12-month
period: [¶] (1) recurrent substance use resulting in a failure to fulfill major role
obligations at work, school, or home (e.g., repeated absences or poor work performance
related to substance use; substance-related absences, suspensions, or expulsions from
school; neglect of children or household)[; ¶] (2) recurrent substance use in situations in
which it is physically hazardous (e.g., driving an automobile or operating a machine
when impaired by substance use)[; ¶] (3) recurrent substance-related legal problems
(e.g., arrests for substance-related disorderly conduct)[; and ¶] (4) continued substance
use despite having persistent or recurrent social or interpersonal problems caused or
exacerbated by the effects of the substance (e.g., arguments with spouse about
consequences of intoxication, physical fights).’ (DSM-IV-TR, at p. 199.)” (Drake M., at
p. 766.)
       We recognize the Drake M. formulation as a generally useful and workable
definition of substance abuse for purposes of section 300, subdivision (b). But it is not a
comprehensive, exclusive definition mandated by either the Legislature or the Supreme
Court, and we are unwilling to accept Crystal’s argument that only someone who has
been diagnosed by a medical professional or who falls within one of the specific DSM-
IV-TR categories can be found to be a current substance abuser. (See Jessen v. Mentor
Corp. (2008) 158 Cal.App.4th 1480, 1490, fn. 10 [there is no “horizontal stare decisis” in
the Court of Appeal; “we are not bound by the contrary decision by Division One of this
                                                                               6
court”]; In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 409 [same].) Here, we

6
        Not only are we not bound by Division Three’s adoption of the DSM-IV-TR’s
definition of “substance abuse” but also that definition has been replaced in the more
                                             9
believe Crystal’s repeated use of cocaine and her ingestion of that drug while pregnant
constitutes recurrent substance use that resulted in her failure to fulfill a major role
obligation within the meaning of DSM-IV-TR. But even if Crystal’s conduct fell outside
one of the DSM-IV-TR categories, we have no doubt her use of cocaine while in the final
stage of her pregnancy, combined with her admitted use of the drug in the past and her
failure to consistently test or enroll in a drug abuse program, justified the juvenile court’s
exercise of dependency jurisdiction over her children.
       In addition, because the children were six years old or younger at the time of the
jurisdiction hearing—children of “tender years” in the language of Rocco M.—“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 harm.” (Drake M., supra,
211 Cal.App.4th at p. 767; accord, Rocco M., supra, 1 Cal.App.4th at p. 824.) Crystal
did not adequately rebut that evidence. Indeed, her use of cocaine during the last months
of her pregnancy confirmed her poor judgment and willingness to endanger her children’s
safety due to substance abuse. Thus, the decision to remove the children from her care
and custody was supported by substantial evidence.




recent Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5),
published in May 2013 after the decision in Drake M, by a more broadly defined
classification of “substance abuse disorders,” which combines substance abuse and
dependence. DSM-5 identifies 11 relevant criteria, including cravings and urges to use
the substance; spending a lot of time getting, using or recovering from use of the
substance; giving up important social, occupational or recreational activities because of
substance use; and not managing to do what one should at work, home or school because
of substance use. The presence of two or three of the 11 specified criteria indicates a
mild substance use disorder; four or five indicate a moderate substance use disorder; and
six or more a severe substance use disorder. (American Psychiatric Association,
Highlights of Changes from DSM-IV-TR to DSM-5
<http://www.dsm5.org/Documents/changes%20from%20dsm-iv-tr%20to%20dsm-
5.pdf>as of April 14, 2014.)
                                              10
       3. The Count B-2 Jurisdiction Finding as to Frank Is Supported by
                               7
          Substantial Evidence
       Frank, an unemployed, 22-year-old, former gang member, has been a daily user of
marijuana for a number of years. The court reasonably disbelieved his claim he had
stopped using marijuana two weeks before Brianna’s birth because he was going to be a
father, based in part on his initial request for a paternity test, plainly suggesting
impending parenthood was not something he was planning for, and in part on his
explanation he needed to use marijuana in the aftermath of being shot and his purported
failed efforts to obtain a medical marijuana card. In addition, Frank was in violation of
the terms of his parole because he was not drug testing regularly and had tested positive
for marijuana.
       Although Frank does not deny his regular, on-going use of marijuana, he cites
several cases for the proposition that a parent’s use of marijuana alone does not justify
the juvenile court’s exercise of jurisdiction over his or her child. (See, e.g., In re
Destiny S. (2012) 210 Cal.App.4th 999, 1003 [“[i]t is undisputed that a parent’s use of
marijuana ‘without more,’ does not bring a minor within the jurisdiction of the
dependency court”]; In re Alexis E. (2009) 171 Cal.App.4th 438, 453 [use of medical
marijuana, without more, cannot support a jurisdiction finding].) But as the Court of
Appeal explained in Rocco M., supra, 1 Cal.App.4th 814, cases finding a substantial

7
         “‘When a dependency petition alleges multiple grounds for its assertion that a
minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the
[trial] court’s finding of jurisdiction over the minor if any one of the statutory bases for
jurisdiction that are enumerated in the petition is supported by substantial evidence.’”
(Drake M., supra, 211 Cal.App.4th at p. 762.) Frank does challenge the juvenile court’s
section 300, subdivision (b), findings as to Crystal and, accordingly, acknowledges
Brianna is properly subject to dependency court jurisdiction. Nonetheless, Frank
contends, and we agree, the merits of his appeal should be addressed because the
jurisdiction findings in count b-2 as to him could adversely affect a future dependency or
family law proceeding in which he may be involved. (See Drake M., at p. 762; see also
In re I.A. (2011) 201 Cal.App.4th 1484, 1494 [jurisdiction finding not reviewed in light
of father’s failure to suggest any way in which it could actually affect a future
dependency or family law proceeding].)
                                              11
physical danger to a child “tend to fall into two factual patterns. One group involves an
identified, specific hazard in the child’s environment—typically an adult with a proven
record of abusiveness. [Citations.] The second group involves children of such tender
years that the absence of adequate supervision and care poses an inherent risk to their
physical health and safety.” (Id. at p. 824 [citing to cases involving an infant, a two year
old and a child under three years old].) Referring to the second category of cases
identified in Rocco M., the court in Drake M., supra, 211 Cal.App.4th at page 767 held,
to support jurisdiction over a 14-month-old child, the Department needed only to produce
sufficient evidence that the father was a substance abuser—a showing it failed to make.
Here, Brianna was even younger: less than two weeks old when the dependency petition
was filed, and only three months old at the jurisdiction/disposition hearing. Whether or
not Frank’s unemployment and repeated scrapes with the law were directly related to his
chronic marijuana use, on this record the juvenile court properly found Frank’s persistent
and illegal use of marijuana demonstrated an inability to provide regular care for infant
Brianna.
       4. The Disposition Orders as to Frank Were Proper
       As was true with respect to Crystal, because Brianna is an infant, “the finding of
substance abuse [by Frank] is prima facie evidence of the inability of a parent or guardian
to provide regular care resulting in a substantial risk of harm.” (Drake M., supra,
211 Cal.App.4th at p. 767; accord, Rocco M., supra, 1 Cal.App.4th at p. 824.) In
addition, as the juvenile court observed, Frank was not in compliance with the terms of
his parole; Brianna had never lived with him; the paternal grandfather, with whom Frank
was living, had not agreed to have the child placed in his home; and there had not been
cooperation with the Department to have that home evaluated for safety. Under these
circumstances the decision not to place Brianna with Frank was proper.
       Frank’s additional objection to portions of the case plan—a full substance abuse
program, individual counseling to address case issues and monitored visitation—
similarly lacks merit. Section 362, subdivision (d), provides: “The juvenile court may

                                             12
direct any reasonable orders to the parents or guardians of the child who is the subject of
any proceedings under this chapter as the court deems necessary and proper to carry out
this section, . . . [including] a direction to participate in a counseling or education
program . . . .” (§ 362, subd. (d).) Under section 362, subdivision (d), “[t]he juvenile
court has broad discretion to determine what would best serve and protect the child’s
interests and to fashion a disposition order accordingly.” (In re A.E. (2008)
168 Cal.App.4th 1, 4.) On appeal, “‘this determination cannot be reversed absent a clear
abuse of discretion.’” (Ibid.) Given Frank’s daily use of marijuana and his failure to
fulfill his responsibilities to meet the terms of parole, requiring participation in a drug
abuse program and counseling, as well as monitored visitation, was well within the
                            8
court’s ample discretion.
                                       DISPOSITION
       The juvenile court’s findings and orders are affirmed.



                                                   PERLUSS, P. J.

       We concur:



              WOODS, J.



              ZELON, J.




8
       Minute orders from the section 366.21, subdivision (e), six-month review hearings
on January 15, 2014 and February 28, 2014 indicate Frank is currently in custody,
effectively mooting his challenge to the order requiring monitored visitation. As we
advised the parties in a letter dated March 3, 2014, we take judicial notice of those two
minutes orders pursuant to Evidence Code sections 452, subdivision (d), and 459.
                                              13
