Filed 3/29/17 In re L.J. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE


In re L.J. Jr., a Person Coming Under the Juvenile Court Law.

SOLANO COUNTY HEALTH & SOCIAL SERVICES DEPARTMENT,
Plaintiff and Respondent,
v.
L.J.,
Defendant and Appellant.


A148871

(Solano County
Super. Ct. No. J43286)

INTRODUCTION
L.J. Jr. (L.J.), who tested positive for marijuana at birth, was placed in protective custody after hospital staff reported his mother (Mother) and father (Father) were behaving erratically. Father appeals from both the jurisdictional and dispositional orders, claiming they are unsupported by substantial evidence. We disagree, and affirm.
PROCEDURAL AND FACTUAL BACKGROUND
After L.J. tested positive for marijuana at birth, hospital staff contacted the Solano County Health & Social Service Department (Department) when Mother began acting erratically and was belligerent with the nurses. Mother was homeless, had mental health issues, and had four other children involved in an “open Child Welfare case.” When a Department social worker arrived with hospital security guards and two police officers, both Mother and Father became angry and upset. Hospital staff had told the parents L.J. needed to remain in the hospital for 48 hours due to “ ‘Strep B’ ” exposure. After the social worker explained L.J. would be placed in protective custody at the hospital, Father threatened to leave with L.J. He was escorted from the hospital premises after failing to comply with police directives. Mother was arrested on an outstanding warrant upon release from the hospital. L.J. was placed in the neonatal intensive care unit for his safety.
The Department filed a petition alleging failure to protect the minor under Welfare and Institutions Code section 300, subdivision (b). As to Father, the petition alleged L.J. was at substantial risk of serious physical harm or illness based on Father’s behavior at the hospital, including “stat[ing] he would leave with the minor despite the minor being placed on a protective hold” and having to be escorted off hospital premises by police after not complying with their directives. The petition also alleged Father’s untreated mental health condition “periodically impairs his ability to provide safe and adequate care of the minor,” and that his “untreated substance abuse periodically impairs his ability to provide safe and adequate care of the infant. . . .”
Father reported to the social worker he had post-traumatic stress disorder and bipolar disorder. He has another child who is a dependent in Contra Costa County. Father admitted a criminal history of vandalism and driving with a suspended license. He told the social worker Mother had been upset at the hospital because they were told L.J. needed to stay an additional 48 hours due to “ ‘Strep B’ ” exposure, but “he was fine with that.”
L.J. was ordered detained in an emergency shelter. The court ordered alcohol and drug testing, substance abuse treatment, parenting education and mental health services for Father, as well as supervised visitation with L.J.
In the report for the jurisdictional hearing, the Department noted there was a dependency matter in Contra Costa County regarding another son of Father’s, T.J. Father told the social worker “ ‘he cannot talk about it.’ ” The Contra Costa petition alleged Father had an active domestic violence restraining order after hitting T.J.’s mother while she was pregnant. T.J. had been placed in the care of his maternal grandmother. The report also noted Father had a pending criminal case, apparently for vandalism, and was released under the “ ‘pretrial services release program.’ ” Father indicated he had been diagnosed with bipolar disorder when he was 16, and has had bipolar symptoms ever since. He reported being “easily irritable, angry, and has difficulty sleeping.” Solano County Mental Health described him as “ ‘very dramatic, overly intense and engaged in persistent story telling that was difficult to interrupt.’ ” He used marijuana daily, but refused medication to treat his bipolar disorder. Father stated he believed he was mentally and physically able to care for his newborn son.
Father told the social worker “he had a place to stay with his son, and the financial means to provide for him.” The social worker scheduled a home visit at the residence address provided by Father. When she arrived, Father’s sister told the social worker Father did not live there. Father explained his sister said he didn’t live at the residence because “he does not physically have a room in the home,” but he can “sleep there when needed.”
The social worker contacted Father to schedule substance abuse testing and an office visit. Father indicated he uses marijuana to alleviate his mental health symptoms, and that he has been arrested for possession of a controlled substance and has sold “illegal substances” in the past. The social worker reported Father “escalated quickly, became irate, yelling at the [social worker] and eventually refusing to speak with [her].” The results of Father’s drug test on December 31, 2015 were “ ‘abnormal,’ ” and the social worker was waiting for further analysis.
Contra Costa County Children & Family Service provided an update on the dependency case involving Father’s other child T.J., born in 2012. A police report indicated Father “choked, grabbed, and slapped [T.J.’s] mother. . . . He also punched a hole in the wall and slapped [the mother’s] godson.” T.J.’s mother “told family members [Father] was trying to pimp out his stepdaughter and force himself on [her],” which Father denied. A restraining order prohibited Father from contacting the stepdaughter. The Contra Costa social worker reported that Father had five visits with T.J., and missed two. The first few visits went well, but he arrived at a visit smelling of marijuana and not focusing well. The visitation supervisor reported Father’s “ ‘mind seemed to be drifting’ ” during the last two visits. Prior to the start of the jurisdictional hearing regarding T.J., the court had ordered a drug test for Father. He had tested positive for THC (tetrahydrocannabinols). The court adjudged T.J. a dependent child under Welfare and Institutions Code section 300, subdivision (j), and found that placement with Father would create a substantial risk to the child’s well-being.
In the disposition report, the social worker reported she had scheduled an in-person interview with Father and L.J.’s paternal grandfather at the grandfather’s residence. The paternal grandfather was upset with Father, and “repeatedly stated he did not trust [Father] because he is dishonest.” He told the social worker “he and [Father] have not had any discussion regarding [Father] residing in his home with his infant son, . . . [and] he would need time to consider this arrangement before agreeing.” The paternal grandfather reported Father does not live at the residence, but is allowed to store his belongings and occasionally sleep in a converted den. He “reported he had concerns regarding [Father’s] ongoing mental health and substance abuse needs, but more importantly, his son’s criminal activities.”
Father told the social worker he did not believe his substance abuse and mental health issues impacted his ability to care for infant L.J. He maintained all he needed to care for L.J. on his own was subsidized childcare and transportation assistance. Despite being referred for mental health and substance abuse treatment, parenting resources, and domestic violence education, Father had not engaged in services. He had visited L.J. on a weekly, supervised basis, and acted “loving and affectionate” during the visits. When the social worker attempted to discuss the case plan objectives, however, Father became agitated, highly emotional and angry.
In an addendum report for the continued jurisdictional and dispositional hearing, the Department reported Father was admitted to the Healthy Partnerships outpatient substance abuse program, but was discharged approximately three weeks later due to excessive absences. He had attended one of six group sessions, and none of the scheduled individual sessions. A social worker then referred Father for substance abuse treatment at Anka Behavioral Health. He attended an intake session, and was referred to a 30-day program, which included anger management, family skills and “Strategies for Change.” He attended two group sessions and no individual sessions. Between December 28, 2015 and April 6, 2016, the Department requested Father submit to a drug test nine times. The tests revealed THC and, on one occasion, THC and amphetamines. On four of the test dates, Father was a “No Show” which resulted in a “Presumptive Positive.”
The Department attached a copy of a police report from February 2015 involving Father and Mother. Police had responded to a report of a man hitting and pushing a female. The female was identified as Mother, and the man was identified as Father after he initially gave a false name. Father was arrested for providing a false name to police and because he had a “no bail warrant for his arrest.”
Father continued to have supervised visitation with L.J. Although he “appeared to be engaging, nurturing, and attentive,” Father would fall asleep periodically during visits. Father testified he fell asleep during 30 to 40 percent of the visits, usually for “about a half hour.” He also, along with Mother, fed solid foods to the infant during the visits. The social worker expressed concern because L.J.’s pediatrician had not approved solid foods yet.
Father testified he had a medical marijuana card for various physical and mental conditions, including injuries sustained in a car crash, a stabbing, a “fractured throat box,” a “bad hit in football,” and arthritis in his ankle. He does not smoke marijuana, but ingests “edibles” infused with marijuana. Father also testified about the dependency case involving his other son, T.J., who was placed with his maternal grandmother. When asked about the terms and conditions of his visitation with T.J., he testified “I go see him” at “[v]arious places,” but did not know who brought T.J. to those visits, and did “not have an accurate number” of how many times he had visited. He did not know what he would have to do in order to have unsupervised visitation with T.J. Father additionally testified he had three jobs; an “entertainment” job for which he had earned about $37 in the quarter ending March 31, 2016, “watch[ing] a door at a club,” for which he earns $60 each time, and “qualify[ing] people for the California Lifeline Program.” He would not “disclose” how much he made working for that program, testifying it “[v]aries every given month” and he “never estimate[s] that.”
The court sustained the jurisdictional allegations as to both parents, adjudged L.J. a dependent, ordered reunification services and supervised visitation for both parents, and continued L.J.’s out-of-home placement.
DISCUSSION
The Jurisdictional Findings
Father maintains no substantial evidence supported the jurisdictional findings. The court sustained three jurisdictional allegations as to Father under section 300, subdivision (b).
Welfare and Institutions Code section 300 provides in part: “A child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: . . . [¶]. . . [¶] (b)(1) The 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 the custodian with whom the child has been left, 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.” (§ 300, subd. (b)(1).)
We review the juvenile court’s findings and orders to determine whether they are supported by substantial evidence. (In re M.R. (2017) 8 Cal.App.5th 101, 103.) Father, as the party challenging the juvenile court’s findings and orders, “bear[s] the burden to show there was no evidence of a sufficiently substantial nature to support those findings and orders. 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. 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.” (Id. at p. 108) “The Court of Appeal is not a second trier of fact.” (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.)
The first allegation in the petition was that after the social worker responded to the hospital, Father “became upset and angry with [the] Social Worker. . . . [Father] had to be escorted out of Northbay [H]ospital premises due to not complying with Fairfield [p]olice officers’ directives. [Father] stated he would leave with the minor despite the minor being placed on a protective hold. The minor, [L.J.], was placed in protective custody and put in the [neonatal intensive care unit] for his safety. Such behavior on the part of [Father] . . . places the minor, [L.J.], at substantial risk of serious physical harm or illness.”
Father asserts “there is not even a scintilla of evidence that the minor suffered or would suffer serious physical harm or illness as a result of Father’s conduct at the hospital.” To the contrary, the evidence showed that Father threatened to take the newborn minor, who tested positive for marijuana, from the hospital after being told by hospital staff the minor needed to remain hospitalized due to Strep B exposure. Father testified he was told about this exposure, and the minor was subsequently placed in the neonatal intensive care unit for his safety. Thus, Father’s threats to remove the minor from the hospital were substantial evidence that the minor would suffer serious physical harm.
The second allegation was that Father “self[-]reported a history of Post
Traumatic Stress Disorder and Bi-Polar Depression for which he is receiving no medication or treatment. [Father’s] untreated mental health condition periodically impairs his ability to provide safe and adequate care of the minor, [L.J.]”
Father maintains there was no evidence L.J. was “ever harmed or at a substantial risk of serious physical harm resulting from any alleged mental health issue,” and avers his behavior at the hospital was insufficient. The evidence showed Father admitted he had both post-traumatic stress disorder and bipolar depression. He became angry and threatened to take L.J. from the hospital despite his knowledge that L.J. had been exposed to Strep B and needed to remain in the hospital. Father reported being “easily irritable, angry, and has difficulty sleeping.” He had a history of domestic violence with the mothers of both his children. Solano County Mental Health described him as “ ‘very dramatic, overly intense and engaged in persistent story telling that was difficult to interrupt.’ ” L.J.’s paternal grandfather “reported he had concerns regarding [Father’s] ongoing mental health and substance abuse needs, but more importantly, his son’s criminal activities.” Father often fell asleep during visitation with L.J., and when visiting T.J., the visitation supervisor reported Father’s “ ‘mind seemed to be drifting.’ ” Substantial evidence supported the juvenile court’s finding.
The third jurisdictional allegation was that Father’s “untreated substance abuse periodically impairs his ability to provide safe and adequate care of the infant. . . .” Father contends his use of marijuana did not “rise to the level of substance abuse,” and cites cases which indicate “ ‘use of medical marijuana, without more, cannot support a jurisdictional finding that such use brings the minors within the jurisdiction of the dependency court. . . .’ ” (See In re Alexis E. (2009) 171 Cal.App.4th 438, 453; see also Drake M., supra, 211 Cal.App.4th at p. 767.)
Drake M. held “a finding of substance abuse for purposes of section 300, subdivision (b), 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 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., supra, 211 Cal.App.4th at p. 766.) Drake M. acknowledged that in cases involving “children of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety . . . 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.)
We are not bound, however, by the Drake M. definition of substance abuse which has been rejected by other courts. In In re Christopher R. (2014) 225 Cal.App.4th 1210 (Christopher R.), the court declined to hold that Drake M. set forth the exclusive definition of substance abuse. “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 [parent’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.” (Christopher R., at p. 1218.)
Even if we accept the Drake M. definition of substance abuse, Father’s repeated use of marijuana, as well as his use of amphetamines as evidenced by his positive test, constituted “recurrent substance use that resulted in [his] failure to fulfill a major role obligation within the meaning of DSM-IV-TR.” (Christopher R., supra, 225 Cal.App.4th at p. 1218.) And, because L.J., a vulnerable newborn, was certainly of “tender years,” “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.” (Drake M., supra, 211 Cal.App.4th at p. 767.)
The Dispositional Order
Father maintains no substantial evidence supported the juvenile court’s order removing L.J. from his custody. He asserts there was insufficient evidence “that there would be a substantial danger to the minor’s physical well-being if returned home.”
Section 361 provides in part: “(c) A dependent child shall not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances. . . : [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody.” (§ 361, subd. (c)(1).)
The evidence showed L.J. tested positive at birth for marijuana. He had been exposed to Strep B and required placement in the hospital’s neonatal intensive care unit. Despite this, Father threatened to remove L.J. from the hospital and became angry with the social worker, and police had to remove him from the hospital. The evidence also showed Father had ongoing substance abuse issues, mental health issues, another child who was the subject of a pending dependency proceeding, and a history of domestic violence with the mothers of both his children. Although Father claimed L.J. could live with him at the paternal grandfather’s home, the paternal grandfather was not in agreement, and expressed his concerns about Father’s mental health, substance abuse, and criminal activities.
Father also asserts “there are several alternatives to out-of-home placement that should have been considered.” He claims the court could have placed L.J. in his custody and “ordered strict Agency supervision and unannounced visits,” “ordered Father to comply with all aspects of his service plan on contingency that the minor remain in his care,” and place the minor with Father “upon the co ndition that Father also reside in the home of an approved relative.” Father, however, misrepresented his living situation to the Agency, and it was not clear where he was staying. The only relative identified by Father was L.J.’s paternal grandfather, who had not agreed to Father and L.J. living in his house. Moreover, the court had ordered reunification services for Father, including substance abuse treatment, parenting education and mental health services, with which Father had only minimally complied.
There was ample evidence supporting the juvenile court’s dispositional order.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.

 




_________________________
Banke, J.


We concur:


_________________________
Humes, P.J.


_________________________
Margulies, J.























A148871, In re L.J.