Filed 7/19/22 In re A.T. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re A.T., a Person Coming Under 

the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

M.D.,

Defendant and Appellant.

 D079980

 (Super. Ct. No. J520826)

APPEAL from an order of the Superior Court of San Diego County, 

Browder A. Willis III, Judge. Affirmed.

Amy Z. Tobin, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy 

County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff 

and Respondent.
2

Infant A.T. was detained at birth after his umbilical cord tested 

positive for amphetamine and methamphetamine, among other substances, 

and M.D. (Mother) tested positive for amphetamine and methamphetamine. 

Mother appeals the juvenile court’s order following a contested adjudication 

and disposition hearing in which the court removed A.T. from Mother’s care 

and placed him in a licensed foster home. Mother contends there was not

substantial evidence to support the juvenile court’s removal order and there 

were reasonable alternative means to protect A.T. We disagree and affirm 

the order.

BACKGROUND

A. Family History

Mother and L.T. have known each other for over 10 years. L.T. 

(Father) was determined to be A.T.’s biological father.1 They are not 

married, but Mother and three other children commuted between the central 

valley of California and Father’s home in Mexico every week or two before 

A.T. was born. Mother has two older children who reside with Mother’s adult 

daughter in another state. 

Mother learned she was pregnant with A.T. when she was five and a 

half months pregnant. She reported having one prenatal examination in the 

central valley of California and one at a clinic in Mexico. She said she was 

tested for preeclampsia at a San Diego hospital and had an emergency 

caesarian section at 32 weeks. 

1 Father initially denied being A.T.’s biological father, saying he believed 

he was being extorted. Mother gave inconsistent stories about A.T.’s 

paternity, but later admitted that she said L.T. was not A.T.’s father because 

she was upset with a prior social worker. A paternity test confirmed L.T. was 

A.T.’s biological father. 
3

After A.T. was born at the end of July 2021, he received care in a

neonatal intensive care unit (NICU). The Agency received a report that 

Mother had no prenatal care and she tested positive for amphetamines at 

birth. A.T.’s umbilical cord tested positive for amphetamines and 

methamphetamines, as well as several other substances that could not be 

accounted for by medications provided to Mother in the hospital. Mother 

denied using methamphetamine, but said she occasionally smoked marijuana 

before she learned she was pregnant. She took some medications during her 

pregnancy for preeclampsia. She said she smoked “a few tokes” from a prerolled “blunt” about a month before delivery. She did not believe there was 

methamphetamine in the blunt, but she had no other explanation. Mother 

said she was willing to do “whatever the agency wants,” but did not believe 

she needed substance abuse treatment. 

A few days after A.T.’s birth, the Agency received a report with

concerns that Mother could not care for the newborn child. The reporting 

party said that Mother was known in the community as a substance user and 

that two of her children were previously removed by another county. The 

reporting party said there was no gas or electricity in the home for several 

months because the family could not pay their bills. The reporting party said 

a one-year-old sibling was sick and could not walk and that two older siblings 

did not attend school. Because these children were outside the jurisdiction, a 

cross report was made to the International Liaisons Office. 

B. Initiation of Dependency Proceedings

The Agency filed a petition on August 11, 2021, alleging that A.T. was a 

child within the jurisdiction of the juvenile court under Welfare and 
4

Institutions code section 300, subdivision (b),2 because he suffered or was at 

a substantial risk of suffering serious physical harm or illness due to his 

positive test for amphetamine and methamphetamine and Mother’s positive 

test for methamphetamine and amphetamine. 

In the detention report, the Agency reported that Mother historically 

used substances during her pregnancies and evaded Agency contacts. Mother 

tested positive for marijuana when she delivered a previous child. The 

Agency was concerned that A.T. would be exposed to Mother’s drug use and 

that his basic needs could be neglected. 

Prior allegations of general neglect regarding a sibling approximately a 

year earlier were closed as inconclusive by another county. That child was 

also born premature and was placed in the NICU. Mother had difficulty 

visiting consistently due to health and transportation problems. She bonded 

well with the child when she visited. Later, there were concerns about 

whether Mother was following up with important medical care for the child.

General neglect allegations regarding Mother’s older children missing school 

or being home alone were evaluated out by another county approximately 10 

years earlier. 

The Agency did not believe Mother was appropriate for voluntary 

services. A social worker advised Mother in 2018 to meet with a substance 

abuse specialist to address her drug use. Mother said in early August 2021 

that she contacted a substance abuse specialist, but she had not completed 

screening at the time of the report. Mother did not admit to using 

methamphetamine or acknowledge a need for treatment. 

2 All further statutory references are to the Welfare and Institutions 

code.
5

C. Detention Hearing

Mother appeared remotely at the detention hearing on August 12, 

2021. She disrupted the proceedings by talking over the judge, disputed

comments about L.T. being A.T.’s father, and stated she was recording the 

proceeding, which the court informed her was a violation of the 

confidentiality of the proceedings. When Mother continued to be disruptive 

after several warnings, the court disconnected her and gave her attorney an 

opportunity to contact her. Mother was suspicious of the proceedings and 

hung up on the attorney. When court reconvened, Mother said she was still 

recording the proceedings and intended to turn the recordings in to the police. 

The court continued the hearing to the afternoon and ordered Mother to 

appear in person. She did not do so. 

Because there was a concern about whether Mother resided in Mexico, 

the court took temporary emergency jurisdiction and found that the Agency 

made a prima facie showing that A.T. was a child described by section 300, 

subdivision (b). The court commented that the child was born premature, 

weighing just over three pounds. Mother’s toxicology screen was positive for 

amphetamine and the child’s toxicology screen was positive for 

methamphetamine and amphetamine. There was also a report that Mother 

was a long-time substance abuser and lived in unsafe conditions. The court 

found that removal of A.T. from his parents was necessary due to a 

substantial danger to the physical health of the child and there were no 

reasonable means to protect the child’s physical or emotional health without 

removal from the parents’ custody. The court ordered A.T. detained out of 

the home. 
6

D. Jurisdiction and Disposition Period

The social worker authorized supervised visits for Mother in the NICU, 

but Mother did not visit. She said she watched A.T. on the NICU monitor 

and called to check on him daily. 

The social worker requested that Mother drug test on August 26, 2021. 

Mother did not do so. She later said she was confused about the date. The 

social worker requested that Mother complete a hair follicle test by 

September 3, 2021. Mother agreed, but did not do so. 

Mother denied being a drug addict. Her parents were drug addicts and 

were not involved in her life as parents. She was raised by a grandmother 

and she experienced physical, sexual, and emotional abuse. She said she 

would not put her children in that position. 

Mother denied being involved in a child welfare case in the past, but 

admitted that she had referrals. She thought A.T. would be safe in her home 

and denied the need for services. However, she said she was willing to 

participate in recommended services. Mother said she did not contact a 

substance abuse specialist in August due to transportation difficulties and 

she was unable to call. 

The social worker encouraged Mother to participate in voluntary 

services to prevent delays in reunification. She explained the Agency would 

recommend substance abuse treatment, random drug testing, parenting

classes, and individual counseling. Mother wanted A.T. placed with her and 

said she would participate in services when A.T. was in her care. The social 

worker submitted therapy referrals for Mother and submitted a request to 

locate a drug testing site and parenting classes for Father in Mexico through 

the International Liaisons Office. 
7

The parents participated in a child and family team meeting on 

September 10, 2021. Mother continued to deny using methamphetamine and 

stated that the drug tests at the hospital did not make sense. She had not 

followed through with drug testing and said it was unnecessary because she 

does not use drugs. She thought if she took a drug test it would amount to 

admitting that she has a drug problem. The Agency and Mother’s supports 

encouraged her to cooperate, but Mother pushed back saying “what’s the 

point.” The social worker submitted requests for substance abuse treatment, 

drug testing, parenting classes, and therapy services in Mexico. 

At the jurisdiction and disposition hearing, the parents requested a 

trial on the truth of the allegations and disposition. Mother asked for 

placement of the child with her and Father in Mexico and for family 

maintenance services to be provided in Mexico. Since Father is unable to 

travel to the United States, he requested visits at the border if A.T. were not 

placed with them. The court assumed subject matter jurisdiction of the case 

because authorities from the Republic of Mexico did not respond to 

notifications about the case. The court set the matter for a contested 

adjudication and disposition hearing. 

A.T. was placed in a licensed foster home after his discharge from the 

hospital. The caregiver reported in late September and early October 2021 

that communication with the parents was difficult due to the use of an 

international phone number. Mother missed visits and was not calling or 

asking for video calls. The caregiver tried connecting with the parents 

through a social media platform. The social worker encouraged Mother to 

attend scheduled visits and made a referral for Mother to visit at a family 

visitation center. However, Mother frequently canceled, did not appear, or 

was late to visits. 
8

In late October 2021, the social worker again encouraged Mother to 

begin participating in services, including in-person substance abuse 

treatment, to prevent delays in reunification. The social worker confirmed 

the Mother had not followed through with prior drug tests and again 

requested that she complete a hair follicle test. Mother did not do so. 

Mother did not test as requested in November or December 2021. She 

picked up referral information only a week before the scheduled contested 

hearing, even though it had been available for two months. 

The Agency remained concerned that Mother used methamphetamine 

while pregnant resulting in positive toxicology tests for both her and A.T. 

Mother did not demonstrate insight into the protective issues, continued to 

deny substance abuse, did not comply with repeated requests for testing, and 

had not started any services. Her visits with A.T. were inconsistent. 

E. Contested Adjudication and Disposition Hearings3

The court received the Agency’s detention report, the jurisdiction report 

and two addendum reports. 

The social worker testified on cross examination that Mother’s 

interactions with A.T. were loving and appropriate during visits. 

Father denied knowing that Mother used illegal substances. He said 

he saw Mother two or three times a month when she was pregnant with A.T.

and she lived with him after this case began. Father described Mother as a 

great mother and said she did not need a parenting class. He said he would 

obey court orders, support Mother in getting into a treatment program, or 

3 The contested adjudication and disposition hearing was continued to 

December to complete Father’s paternity testing. It commenced virtually on 

December 17, 2021, but was suspended due to communication difficulties. 

The hearing was completed on January 20, 2022. 
9

take courses to recognize when someone is under the influence of drugs. He 

said they have electricity and running water at his home. 

Mother testified on her own behalf. Mother stated she sought prenatal 

care, but did not discover she was pregnant until she was over five months

pregnant. She said she had a prenatal check-up in the central valley of 

California. 

Mother had no explanation for why she and A.T. tested positive for 

methamphetamines. She denied using methamphetamine or alcohol. She 

testified that she had transportation difficulties for drug testing. She also 

said she felt as though testing to prove she was clean and sober amounted to

admitting that she had a drug problem, which she denied. She understood

from the child and family team meeting that a clean drug test would not 

change her child’s placement and she would have to participate in services 

anyway. Mother said she would drug test and participate in services if A.T. 

were placed with her and the services were mandatory. 

Mother picked up referral information for services at the end of 

November 2021, but she had not started services at the time of the hearing in 

January 2022. Mother stated she visited A.T. about 10 times in person since 

he was born and attended virtual visits twice a week. 

Mother asked for A.T. to be placed in her care, saying he should be with 

his family. She said she would participate in any recommended services if 

her son could be with her, including drug testing. 

In rebuttal, the social worker said the caregiver reported the parents 

were only able to visit A.T. virtually about once per week due to connection 

issues. The social worker stated she provided Mother with drug testing 

referrals in Mexico. The worker also submitted referrals for transportation 

passes, but Mother did not pick them up. 
10

The social worker expressed concern about placing A.T. in Mother’s 

care because, without Mother’s cooperation with voluntary drug testing, the 

Agency could not assess that there was no substance abuse occurring in the 

home. The only information available at the time was the positive drug test 

from July 2021. 

After considering the evidence and the testimony, the court found 

jurisdiction under section 300, subdivision (b). The court found the only 

inference it could draw from the uncontroverted positive tests for both 

Mother and A.T. was that there was methamphetamine use. The court 

determined that there was credible evidence that the medication Mother was 

given at the time of delivery would not produce the positive results. The 

court found there was harm to the child as a result of the drug use. 

The court found Mother made no progress toward alleviating or 

mitigating the causes necessitating placement and that there was clear and 

convincing evidence that A.T. should continue to be removed from Mother 

because there was a substantial danger to the physical health, safety, 

protection or physical or emotional well-being of A.T. and there was no 

reasonable means by which he could be protected without removal. The court 

ordered A.T. placed in a licensed foster home. 

The court admonished mother to participate in services and of the 

importance of providing drug testing to get A.T. back in her care. 

DISCUSSION

Mother does not challenge the juvenile court’s jurisdictional finding, 

but contends there was not substantial evidence to support the court’s 

removal order and that there were reasonable alternatives to removal. 

Once the court exercises jurisdiction over a minor, “it must decide the 

appropriate disposition. Generally, the court chooses between allowing the 
11

child to remain in the home with protective services in place and removing 

the child from the home while the parent engages in services to facilitate 

reunification.” (In re E.E. (2020) 49 Cal.App.5th 195, 205 (E.E.).) To order 

removal of a child from parental custody, the juvenile court must find clear 

and convincing evidence that “[t]here 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 . . . physical custody.” (§ 361, 

subd. (c)(1).) The court must also determine if “reasonable efforts were made 

to prevent . . . the need for removal” and “state the facts on which the 

decision to remove the minor is based.” (§ 361, subd. (e).)

“The parent need not be dangerous and the minor need not have been 

actually harmed before removal is appropriate. The focus of the statute is on 

averting harm to the child.” (In re D.B. (2018) 26 Cal.App.5th 320, 328

(D.B.).) The court may consider the “parent’s past conduct as well as present 

circumstances.” (Id. at p. 332, citing In re Cole C. (2009) 174 Cal.App.4th 

900, 917.)

We review the court’s removal order for substantial evidence, bearing 

in mind the heightened clear and convincing evidence standard of proof. (In 

re Kristen H. (1996) 46 Cal.App.4th 1635, 1657; see Conservatorship of O.B. 

(2020) 9 Cal.5th 989, 995-996 (O.B.).) The question before us is “whether the 

record as a whole contains substantial evidence from which a reasonable 

factfinder could have found it highly probable that the fact was true.” (O.B.,

supra, at p. 1011.) We “must view the record in the light most favorable to 

the prevailing party below and give appropriate deference to how the trier of 

fact may have evaluated the credibility of witnesses, resolved conflicts in the 
12

evidence, and drawn reasonable inferences from the evidence.” (Id. at 

pp. 1011–1012.) The “appellant has the burden to demonstrate there is no 

evidence of a sufficiently substantial nature to support the findings or 

orders.” (D.B., supra, 26 Cal.App.5th at pp. 328–329.)

The juvenile court here considered that A.T. was less than a year old 

and did not have the ability to speak for himself. If A.T. were returned to the 

parents’ care, the court stated it did “not have any evidence that the child 

would be adequately protected, either from substance abuse by Mother or 

from Father who would act to protect a child against the substance abuse or 

use of drugs by Mother.” 

Contrary to Mother’s contention, the juvenile court considered 

alternatives to removal. The court considered Mother’s request to return A.T. 

to her care with a family maintenance program. However, the court 

determined that the Agency’s recommendation for continued removal was 

reasonable considering the positive drug tests, which were not mitigated with 

subsequent testing. 

The court found that the “Agency exercised reasonable efforts to 

prevent or eliminate the need for removal by directing Mother to have drug 

testing. At least five tests were offered or directed, and she did not make 

those tests for various reasons. And since drugs are the underlying issue, it 

is clear to this court that . . . that issue [has] not been mitigated. And the 

need for removal is based on that fact.” As a result, the court found there 

was clear and convincing evidence of a nexus between risk of harm related to 

drug use and lack of drug testing. Because there was no evidence Mother 

had mitigated this condition, there was a substantial danger to the health, 

safety and welfare of the child and there was no reasonable means to protect 

the child short of removal and placement in licensed foster care.
13

Substantial evidence supported the court’s findings. It is undisputed 

that Mother and A.T.’s umbilical cord tested positive for drugs at birth. The 

court found the Agency presented credible evidence that the medications 

provided to Mother in the hospital would not result in positive tests for 

amphetamine or methamphetamine. The Agency also received a report that 

Mother was known to use substances. Mother acknowledged that she uses 

marijuana to help with headaches and that she tested positive for marijuana 

when she gave birth to another child a year earlier. 

Mother agrees that this evidence supports the court’s order, but claims 

it is not enough to support the order for removal. We disagree. The use of 

drugs while pregnant “unquestionably endanger[ed] the health and safety of 

her unborn child.” (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217 

(Christopher R.).) A parent’s implausible denial of drug use during 

pregnancy along with resistance to monitoring and services reasonably 

support a finding that the parent is unable to provide a safe home for a child. 

(E.E., supra, 49 Cal.App.5th at p. 215; Christopher R., supra, at pp. 1219–

1220 [persistent use of marijuana supported a finding of inability to provide 

care for an infant].) 

Although Mother claimed she would participate in services, including 

drug testing, if the child were returned to her care under supervision, the 

court found that Mother did not have “a lot of credibility.” The juvenile court 

was in the best position to weigh the evidence and assess Mother’s credibility. 

It is not our role on appeal to “reweigh the evidence, evaluate the credibility 

of witnesses, or resolve evidentiary conflicts.” (In re Dakota H. (2005) 132 

Cal.App.4th 212, 228.) We will uphold a juvenile court’s factual 

determinations “even though substantial evidence to the contrary also exists 
14

and the trial court might have reached a different result had it believed other 

evidence.” (Ibid.) 

Mother relies on In re Ma.V. (2021) 64 Cal.App.5th 11 (Ma.V.) for the 

proposition that the court erred in considering her failure to participate in 

voluntary drug tests and services. That case is not helpful for Mother. That 

case included allegations that the mother, who was a veteran with 

posttraumatic stress disorder, was involved in instances of domestic violence 

with a boyfriend and had a substance abuse problem with marijuana. (Id. at 

p. 14.) After the mother’s children were detained, she informed the court that 

she was already connected to services as a veteran. She reported that she 

used marijuana medicinally with the approval of her Veteran’s 

Administration (VA) providers. (Id. at pp. 17–18.) By the time the contested 

adjudication and disposition hearing was completed, approximately 10 

months after detention, the mother had ended her relationship with the 

boyfriend and testified that she had been attending parenting, domestic 

violence, and individual counseling services through the VA. There was 

evidence that she was compliant with medication and treatment 

recommendations, but the agency had difficulty obtaining detailed 

information from the mother’s VA therapist. The agency was no longer 

concerned that her marijuana use put the children at risk. (Id. at p. 19.) The 

juvenile court removed the children from the mother’s care based on the 

“ ‘historical issue of domestic violence’ and the court’s finding ‘there’s no 

indication that [the] mother has dealt with this.’ ” (Id. at p. 21.) 

The appellate court in Ma.V. determined the jurisdictional findings 

lacked substantial evidence because they were based on old issues that were 

resolved by the time of the hearing. (Ma.V., supra, 64 Cal.App.5th at pp. 21–

23.) The appellate court also determined the evidence was insufficient under 
15

a clear and convincing standard to support the removal order. The court 

concluded that the mother’s services were voluntary and she had no 

obligation to complete a verified case plan because one was not yet ordered. 

(Id. at p. 24.) Nevertheless, the court observed that the mother had improved 

her situation during the detention period so that the earlier issues had “aged 

out.” Although the mother was not entirely cooperative with the agency, the 

court observed that the “ability of a parent to get along with a social worker 

is not evidence from which a removal order can be supported.” (Id. at p. 25.) 

Rather, it was incumbent on the agency to obtain the necessary information 

to confirm her participation in services. (Id. at p. 24.)

Here, unlike in Ma.V., there was no evidence to support a claim that 

the detention issue had aged out. Because Mother resisted or declined 

multiple opportunities provided by the Agency to provide a negative drug test

the court had only the uncontroverted positive drug tests to evaluate. Based 

on this information the court stated, “the only inference that I can draw is 

there was use.” Although Mother claimed she attempted to test when she got 

a referral for testing in Mexico, she also said she did not want to test because 

she thought it was an admission of a drug problem. The court could 

reasonably disbelieve Mother’s explanations. Mother’s continued denial of 

drug use in the face of positive drug tests and evidence that she was a known 

substance user along with her unwillingness to test or participate in 

voluntary treatment supported the court’s determination that there was no 

alternative to removal, particularly for a child who was under a year old. 

(§ 361, subd. (c)(1); In re Lana S. (2012) 207 Cal.App.4th 94, 105–106.)

Mother also contends that the court improperly shifted the burden to 

Father to show his home was safe for placement. We again disagree. Before 

making its findings, the court made some comments about the difficulty of 
16

obtaining information when it had no control over the agencies in Mexico and 

the fact that Father did not help the court by taking any proactive steps to 

provide the court with information about the state of the home, such as 

providing pictures. We construe these comments as what the court stated 

them to be, an advisory digression, not a basis for the court’s order. As the 

Agency points out, Father had only recently been confirmed as the biological 

father. His status was not elevated to presumed and the Agency had no 

burden to show why removal from him was necessary. (§§ 361.5, subd. (a); 

361, subd. (c)(1)(B); In re Zacharia D. (1993) 6 Cal.4th 435, 448–449.)

Finally, Mother contends the court erroneously relied on the alleged 

prior removal of other children and what it termed to be an “open case”

involving another child to support its removal finding. The court 

acknowledged that it did not have full information about whether she had 

voluntary cases in the past or lost other children “who were removed for 

unknown reasons,” but commented that there was a “pattern” that “prior 

children have suffered under the care – or been removed for reasons that can 

only be described as adverse to their best interest, so they were removed.” 

The record shows, and Mother admitted, that she had prior referrals to child 

welfare service agencies and that at least two children were now living in 

another state in the care of an older sibling. There were also referrals for a 

child about a year older than A.T. that were closed by another county as 

inconclusive. The court’s comments appear to be in the context of why it did 

not find credible Mother’s claims that she would do everything the court 

mandated her to do if A.T. were returned to her.

Even if the court relied on these prior referrals, any error was harmless 

because the court’s focus was on the evidence of unmitigated drug use, which 

we have concluded was alone sufficient to support the court’s removal 
17

finding. It is not reasonably probable that the court would have made a 

different finding even without considering the prior referrals. (People v. 

Watson (1956) 46 Cal.2d 818, 836.) 

DISPOSITION

The order is affirmed.

O’ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.