Filed 1/6/17 Certified for publication as modified 2/1/17 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                                DIVISION FIVE

In re M.R. et al., Persons Coming                        B271027
Under the Juvenile Court Law.
                                                        (Los Angeles County
                                                        Super. Ct. No. DK13214)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

       Plaintiff and Respondent,

v.

A.T. et al.,

       Defendants and Appellants.


     APPEAL from an order of the Superior Court of Los
Angeles County, Anabelle G. Cortez, Judge. Affirmed.
     Maureen L. Keaney, under appointment by the Court of
Appeal, for Defendant and Appellant A.T.
     David A. Hamilton, under appointment by the Court of
Appeal, for Defendant and Appellant J.R.
     Office of the County Counsel, Mary C. Wickham, County
Counsel, R. Keith Davis, Acting Assistant County Counsel, Sarah
Vesecky, Senior Deputy County Counsel, for Plaintiff and
Respondent.




                               2
      Mother A.T. (Mother) and father Joshua R. (Father) are the
parents of a daughter, M.R., and a son, J.R. At the time of the
events relevant to this appeal, the children were four years old
and 21 months old, respectively. The Department of Children
and Family Services (Department) filed a dependency petition
seeking juvenile court jurisdiction over both children after
learning Mother had been arrested for driving under the
influence of alcohol with her two children in the car. The parents
contend this was a one-time incident that is insufficient to
support the juvenile court’s finding that their children were at
substantial risk of suffering serious physical harm, as described
by Welfare and Institutions Code section 300, subdivision (b)(1).1
We consider whether there was substantial evidence to support
the juvenile court’s jurisdictional finding.

                        I. BACKGROUND
      A.     Mother’s Arrest for Driving Under the Influence and
             Initial Department Investigation
      At about 2:30 a.m. on July 27, 2015, a California Highway
Patrol (CHP) officer observed Mother driving 83 miles per hour
on Highway 60. The officer initiated a traffic stop, and after
approaching the vehicle, noticed M.R. sleeping across two seats in
the backseat of the car unrestrained by a seat belt. J.R. was
seated in a car seat, but only the top clips were attached and the
bottom belt was unsecured. Smelling a strong odor of alcohol
emanating from the vehicle, the officer asked Mother to exit the

1
      Statutory references that follow are to the Welfare and
Institutions Code.




                                3
car. When Mother did so, “she was unsteady on her feet and had
to lean against [her car] to maintain her balance.”
       The CHP officer asked Mother if she had consumed any
alcoholic beverages and Mother initially said “no.” After the
officer told Mother he could smell the odor of alcohol, she
admitted she had “one drink earlier in the evening,” and later
during the encounter, she told the officer she had two Blue Moon
beers at her grandparents’ house. When the officer asked Mother
to perform certain field sobriety tests, she failed to perform
adequately in several respects. Breath tests administered by the
officer revealed Mother’s blood alcohol content was .14 percent.
The officer arrested Mother for driving under the influence of
alcohol and released the children to Father.
       About a week later, the arresting officer notified the
Department of Mother’s arrest. Department social workers
thereafter interviewed Mother and Father and further
investigated the family’s history and the children’s welfare.2
       According to the first Department report prepared after
Mother’s arrest, Mother told a social worker the arrest had been
“an honest mistake.” Mother said she had been drinking because
her grandfather had recently passed away; she said she and
Father were at her mother’s house first for a family gathering
and they then went to a friend’s house where they started
drinking. Mother stated she recognized her mistake and denied
having a habit of drinking or getting drunk. In regards to the
children being unrestrained (or improperly restrained) in car

2
      Mother, who had just turned 21, and Father, who was 24,
had been in a relationship for approximately four years at the
time of the drunk driving incident. He was employed as a
painter. She stayed home with the children.




                               4
seats on the night she was arrested, Mother claimed the children
often unbuckle their own car seat belts. In this first interview,
Mother told the social worker she would cooperate fully with the
Department and in receiving services to avoid getting her
children removed from her care.
       The same Department report also recounted Father’s
interview statements. He “denied any abuse or neglect to the
children and denied any domestic violence, substance abuse, or
mental health issues.” Father admitted he and Mother were
drinking on the night of the arrest, and he said he let Mother
drive because he thought Mother drank less than he did. Father
likewise said he and Mother would cooperate with the
Department so they would not lose their children.
       In investigating the parents’ history, the Department
obtained a Los Angeles County Sheriff’s Department incident
report detailing an altercation between the parents less than four
years earlier, in January 2012. As summarized by the
Department (and in some contrast to Father’s interview
statement), the incident report stated “the parents had an
argument and father hit mother twice in the face with a closed
fist. [A]lcohol was involved during this incident and that the
parents were at a friends’ house when the incident happened. At
the time of the incident[, M.R.] was seven months old, but a
DCFS referral was not called in.”

      B.    Initiation of Proceedings in the Juvenile Court, and
            Further Department Investigation
      On September 4, 2015, the Department filed a “non-
detained” petition alleging the juvenile court had jurisdiction of
the children under section 300, subdivision (b)(1). Count b-1 of




                                 5
the petition alleged: “On 07/27/2015, the children, [M.R.] and
[J.R.’s] mother . . . placed the children in a detrimental and
endangering situation by driving a vehicle in excess of eighty
miles per hour, while under the influence of alcohol, while the
children were passengers in the vehicle. The children’s
father . . . failed to protect the children when the father knew of
the mother’s alcohol intake and allowed the mother to drive the
children while under the influence of alcohol . . . . Such a
detrimental and endangering situation established for the
children by the mother and the father’s failure to protect the
children endanger the children’s physical health and safety and
place the children at risk of serious physical harm, damage,
danger, and failure to protect.”3
       At the initial hearing on the petition, the juvenile court
found there had been a prima facie showing the children were
persons described by section 300, subdivision (b). The court
ordered the children released to their parents, ordered random
drug and alcohol testing for Mother and Father, and ordered the
Department to refer Mother to an alcohol program.
       In preparation for the scheduled jurisdiction and
disposition hearing, the Department prepared another report
that included, among other things, summaries of further
interviews conducted with Mother and Father concerning the
driving under the influence incident and the children’s welfare.
Mother told the interviewing Department investigator that she
“had a couple of beers” but she maintained she “wasn’t drunk.”


3
      A second count (b-2) alleged the parents placed the children
in a detrimental and endangering situation by failing to properly
secure them in age-appropriate child restraint seats.




                                 6
Father similarly told the Department investigator that Mother
had “one or two beers” and “was not drunk.” Both parents also
claimed Department involvement with the family was
unwarranted; Mother said, “I don’t feel we need a case with [the
Department],” and Father stated, “We really don’t need services
from [the Department],” adding “[Mother] doesn’t have a
drinking problem.” Mother continued to deny any history of
domestic violence when asked, but Father admitted there had
been an incident involving Mother a couple years prior (i.e., the
January 2012 incident reflected in the sheriff’s department
incident report).
       According to the jurisdiction and disposition report, Mother
had tested negative for use of drugs or alcohol on three occasions
since the initial juvenile court hearing. Father had also tested
negative twice. Mother and Father told the Department
investigator they had not consumed any alcohol since the night of
Mother’s arrest.
       The jurisdiction and disposition report concluded with a
summary of the Department’s concerns about Mother and Father
and their ability to look after the children’s welfare. Noting
Mother’s .14 percent blood alcohol reading and her poor
performance on field sobriety tests, the Department believed
“[t]he parents have not been forthcoming in regards to the fact
that the mother had excessively consumed a significant amount
of alcohol on 7/27/15 and then operated a vehicle placing her life
and that of the father and the children in grave danger.” The
report also referenced the January 2012 incident of domestic
violence that occurred while the parents had been drinking. The
Department accordingly stated it had “concerns about the
parent’s alcohol usage, lack of judgment and not ensuring that




                                 7
the children were safely secured in car seats prior to operating
their vehicle.”
       The Department submitted two last minute information
reports before the jurisdiction and disposition hearing. The first
informed the court that Mother had been convicted of a
misdemeanor violation of Vehicle Code section 23152, subdivision
(b) (driving with a blood alcohol content over .08 percent) and
sentenced to three years’ summary probation. The criminal court
ordered Mother to complete a 3-month first offender alcohol and
drug education counseling program. The second report recounted
Mother’s statement that she had completed three parenting
classes and was “planning on enrolling” in substance abuse and
individual counseling at Downey Calvary Chapel. The
Department continued to recommend that the juvenile court
order Mother to complete, among other classes, a Department-
approved alcohol counseling program.

       C.    The Jurisdiction and Disposition Hearing
       The parties appeared for a combined jurisdictional and
dispositional hearing in January 2016. The juvenile court
received into evidence the various Department reports we have
discussed. Neither parent offered any evidence on the
jurisdictional issues and no witnesses testified.
       The Department argued the juvenile court should sustain
the petition in full as pled. Counsel for the children, M.R. and
J.R., asked the court to sustain count b-1 of the petition (alleging
the drunk driving incident) and to dismiss count b-2 of the
petition (concerning the alleged failure to secure the children in
age-appropriate car seats). The attorneys for the parents argued
the juvenile court should dismiss the petition in its entirety,




                                 8
arguing there was no current risk to the children and Mother’s
drunk driving was a one-time incident akin to the facts at issue
in In re J.N. (2010) 181 Cal.App.4th 1010 (J.N.). Mother’s
attorney emphasized that Mother’s criminal case associated with
the drunk driving incident had been resolved, but Mother’s
attorney did concede Mother had not started any programs
ordered in the criminal case “due to finances.”
       The juvenile court found count b-1 proven (with
amendments to reflect Mother’s conviction, instead of a mere
arrest) and dismissed count b-2. The court explained its ruling as
follows: “The court would adopt by reference the facts noted by
[the Department and counsel for the children] as it relates to
(b)(1). I totally agree that the parents are minimizing the
incident in the report. They have not started any programs to
address the underlying issue, at least . . . there’s nothing in the
evidence that indicates that they have started programs. [¶] The
court would also note that I would respectfully disagree that as
severe as it may be, as it was noted by counsel, that there is no
risk to the children, the court would note case law that a one-time
incident if severe enough and serious enough can be a basis for
the court to assume jurisdiction. The court need not wait until
the children are actually harmed to protect the children as that’s
the purpose of dependency court. [¶] . . . [¶] [T]he reports do talk
about Mother’s blood and alcohol level and Mother stumbling out
of the car after she was stopped speeding while the kids were in
the backseat and present during this incident.”
       Proceeding to disposition, the juvenile court stated its
tentative ruling was to proceed under section 360, subdivision (b),
namely to refrain from adjudicating the children dependents of
the court and to order services provided for six months under the




                                 9
supervision of the Department to keep the family together. After
hearing from counsel, and noting the Department’s objection to
the tentative ruling, that was the final order of the court.

                          II. DISCUSSION
       Relying heavily on comparisons to J.N., supra, 181
Cal.App.4th 1010, Mother and Father argue the court’s
jurisdictional finding is infirm because the drunk driving incident
was a one-time episode and there was no substantial evidence of
an ongoing substantial risk of harm to their children at the time
of the jurisdiction hearing.4 We see the record quite differently.
Mother and Father not only seriously jeopardized the physical
safety of their children on the night Mother drove while
intoxicated, they continued to minimize the seriousness of the
incident during the dependency proceedings and had not, at the
time of the jurisdiction hearing, taken any significant steps to
participate in educational programs concerning the problematic
use of alcohol that gave rise to the substantial risk to the
children’s safety. Thus, in our judgment, the juvenile court’s
finding that count b-1 of the petition was true is supported by
sufficient evidence.

     A.    Standard of Review: Substantial Evidence
     We review the juvenile court’s findings and orders to
determine whether they are supported by substantial evidence.

4
      The parents treat the juvenile court’s section 360,
subdivision (b) order as an appealable dispositional order,
permitting review of the court’s true finding of jurisdiction. (In re
Adam D. (2010) 183 Cal.App.4th 1250, 1260-1261.) DCFS does
not contend otherwise.




                                 10
(In re I.J. (2013) 56 Cal.4th 766, 773; In re J.K. (2009) 174
Cal.App.4th 1426, 1433 (J.K.); see also In re Angelia P. (1981) 28
Cal.3d 908, 924 [appellate court reviews the whole record to
determine whether it discloses substantial evidence, that is,
evidence that is reasonable, credible, and of solid value].)
       Mother and Father, as the parties challenging the juvenile
court’s findings and orders, bear the burden to show there was no
evidence of a sufficiently substantial nature to support those
findings and orders. (In re D.C. (2015) 243 Cal.App.4th 41, 52.)
We draw all reasonable inferences from the evidence to support
the findings and orders of the juvenile court and review the
record in the light most favorable to the court’s determinations;
we do not reweigh the evidence or exercise independent
judgment, but merely determine if there are sufficient facts to
support the trial court’s findings. (Id. at pp. 51-52.) Thus, we do
not consider whether there is evidence from which the juvenile
court could have drawn a different conclusion but whether there
is substantial evidence to support the conclusion that the court
did draw. (In re F.S. (2016) 243 Cal.App.4th 799, 813.)

      B.      Substantial Evidence Supports the Juvenile Court’s
              Jurisdiction Finding
       In the J.N. case cited by the parents, a father of three
children driving under the influence of alcohol crashed into a
light pole with his wife (also intoxicated) and children in the car.
(J.N., supra, 181 Cal.App.4th at p. 1014.) The J.N. court held
jurisdiction under section 300, subdivision (b) will not lie where
all that is at issue is a single past incident resulting in physical
harm; instead, there must be “some reason to believe” there is a
“current” or future risk to a child. (Id. at p. 1023.) The J.N. court




                                 11
identified factors courts should consider when evaluating
whether such an ongoing risk of serious harm exists, namely, the
nature of the past conduct and “the present circumstances, which
might include, among other things, evidence of the parent’s
current understanding of and attitude toward the past conduct
that endangered a child, or participation in educational
programs, or other steps taken, by the parent to address the
problematic conduct in the interim, and probationary support
and supervision already being provided through the criminal
courts that would help a parent avoid a recurrence of such an
incident.” (Id. at pp. 1025-1026.)
       Evaluating these considerations, the J.N. court believed
that “[d]espite the profound seriousness of the parents’
endangering conduct on the one occasion in this case, there was
no evidence from which to infer there is a substantial risk [their]
behavior will recur.” (J.N., supra, 181 Cal.App.4th at p. 1026.)
The court pointed to the absence of evidence that the parents’
parenting skills and general judgment were “so materially
deficient that [they are] unable ‘to adequately supervise or
protect’ the children” and emphasized “both parents were
remorseful, loving, and . . . willing to learn from their mistakes.”
(Ibid.)
       We assume for purposes of our analysis that J.N. is correct
in holding a continuing or future risk to a child, rather than only
a past incident of parental neglect, is necessary to sustain a
jurisdictional allegation. (Contra, J.K., supra, 174 Cal.App.4th at
p. 1435; see also In re Ethan C. (2012) 54 Cal.4th 610, 636
[acknowledging the holding in J.N. is contrary to suggestions in
J.K.].) But even proceeding on this assumption, J.N. does not
support reversal in this case.




                                12
       Analogous to J.N., the incident that led to the filing of a
dependency petition in this case was quite serious: Mother—
while intoxicated—was driving over 80 miles per hour while her
children were not properly restrained by seat belts in the car.
But unlike J.N., the parents’ minimization of Mother’s conduct
(maintaining she had consumed just one or two beers despite
evidence of significant intoxication) did call into question their
general judgment. (Compare J.N., supra, 181 Cal.App.4th at pp.
1017-1018 [the father admitted consuming nine beers with
mother and the mother conceded “[s]he had been drinking beers
like she was drinking soda”]; see also In re Gabriel K. (2012) 203
Cal.App.4th 188, 197 [“One cannot correct a problem one fails to
acknowledge”].) Exacerbating matters was the fact that the
parents’ acceptance of responsibility seemed to worsen, rather
than improve, as dependency proceedings progressed: they were
significantly more accepting of the wrongfulness of Mother’s
conduct and open to Department intervention in their first
interview as compared to their interview before the jurisdiction
hearing—when both parents denied Mother was drunk and
stated they saw no need for Department involvement.5 In


5
      Mother suggests she might have been reticent to candidly
discuss the facts of her alcohol consumption on the night of the
incident while criminal charges were pending. This is not a
persuasive argument. Had Mother told the Department she
declined to discuss her alcohol use until the criminal case was
resolved, we would not fault her for doing so. Of course, that is
not what Mother did—she (and Father, who was not facing
charges) instead made statements that appeared to significantly
minimize her alcohol usage. Moreover, nothing prevented
Mother from testifying at the jurisdictional hearing, once the
criminal case had resolved, to explain her statements to



                                13
addition, and although it is true Mother was subject to criminal
court supervision, it is equally true that at the time of the
jurisdictional hearing Mother had not yet participated in any
alcohol education programs nor did she proffer a date certain on
which her participation would begin. Finally, there was also
evidence that Mother and Father had engaged in an alcohol-
related episode of domestic violence in the past, and while this
was not evidence proving the parents had an ongoing substance
abuse problem, it was further reason why the court could
justifiably conclude there remained a risk to the children if and
when the parents’ alcohol use resumed such that informal
supervision was warranted to help mitigate that risk.6
       We believe the juvenile court carefully calibrated its
jurisdicitonal findings and dispositional order to the facts before
it. Substantial evidence supports the juvenile court’s
determinations.




Department investigators during previous interviews. Again,
Mother did not do so.
6
       Notably, the probationary sentence Mother received in her
criminal case would not result in any supervision of Father, who
failed to protect M.R. and J.R. when he permitted Mother to drive
while intoxicated. And unlike the juvenile court, the criminal
courts’ primary focus was on Mother, not the children.




                                 14
                          DISPOSITION

      The orders of the juvenile court are affirmed.




                        BAKER, J.



We concur:



             TURNER, P.J.



             KUMAR, J.*





      Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




                                15
Filed 2/1/17
               CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION FIVE



In re M.R. et al., Persons Coming           B271027
Under the Juvenile Court Law.
                                           (Los Angeles County
                                           Super. Ct. No. DK13214)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN                     ORDER MODIFYING
AND FAMILY SERVICES,                       OPINION AND CERTIFYING
                                           OPINION FOR PUBLICATION

       Plaintiff and Respondent,

v.

A.T. et al.,

       Defendants and Appellants.



THE COURT:
      It is ordered that the opinion filed on January 6, 2017, be
modified as follows:
      On page 5, “[A]lcohol was involved during this incident and
that the parents were at a friends’ house when the incident
happened” is deleted. Substituted in its place is “[A]lcohol was
involved during this incident and . . . the parents were at a
friend’s house when the incident happened.”
      On page 7, in the final line, “[parents’]” is substituted for
“parent’s”.
      On page 14, in footnote 6, “courts’” is deleted and “court’s”
is substituted in its place.
      So modified, and good cause appearing, it is ordered that
the opinion be published in the official reports.
      There is no change in judgment.



____________________________________________________________
                                                             
BAKER, J.              TURNER, P.J.               KUMAR, J.





      Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




                                 2
