Filed 12/16/21 In re K.R. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re K.R. et al., Persons Coming 

Under the Juvenile Court Law.

B311121

Los Angeles County

Super. Ct. Nos. 

20CCJP05378A, 

20CCJP05378B

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

A.E.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles 

County. Martha Matthews, Judge. Affirmed.

Lelah S. Fisher, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, 

Assistant County Counsel, Brian Mahler, Deputy County 

Counsel, for Plaintiff and Respondent.

_________________________
2

The juvenile court sustained a petition under section 300 

of the Welfare and Institutions Code,1 after finding A.E. (mother)

drove her child while under the influence of alcohol. Mother 

challenges the sufficiency of the evidence supporting the 

court’s jurisdictional findings. Specifically, she argues 

there is insufficient evidence showing a current risk of harm 

to her children as of the jurisdiction hearing. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

The Los Angeles Department of Children and Family 

Services (DCFS) received a report that mother was arrested for 

driving 100 miles per hour while under the influence of alcohol. 

The reporter said mother’s four-year-old daughter, Ky.R., was 

in a car seat, but she was not properly restrained in it.

According to the police report of the arrest, around 

1:35 a.m. on August 29, 2020, officers pulled mother over for 

driving at an “extreme high rate of speed.” The officers smelled 

alcohol inside the vehicle, and mother told them she drank one 

and a half glasses of wine between 9 and 11 p.m. the night before. 

Mother smelled of alcohol, and her eyes were red and watery. 

She failed the field sobriety tests and her blood alcohol content 

(BAC) was measured to be .13 percent.

During DCFS’s investigation, mother confirmed the 

referral was true. She said she was visiting family members

that night and drank three glasses of wine starting around 

9 or 10 p.m. Mother said she understood the severity of the 

incident. She denied having alcohol abuse issues, but agreed 

to enroll in an Alcoholics Anonymous (AA) program. Mother 

1 Future statutory references are to the Welfare and 

Institutions Code.
3

also agreed to weekly and on-demand alcohol tests. She tested 

negative for alcohol on September 11, 2020.

Mother’s other child, six-year-old K.R., was with maternal 

grandmother during the incident. K.R. said he had never seen 

mother drink alcohol, and he expressed feeling happy and safe 

at home. There were no signs that K.R. or Ky.R. were abused 

or neglected.

Maternal grandmother said she was shocked when she 

learned mother had been arrested. She said mother drinks 

occasionally, but does not get drunk or drive while drinking. 

Maternal grandmother described mother as loving and protective 

of her children.

The children’s father reported that mother drinks 

occasionally, but not heavily. He denied any knowledge that 

mother has substance abuse issues, and he had never seen

her drive while under the influence of alcohol.

Paternal grandmother also had never seen mother drive 

while under the influence of alcohol, and she had no concerns 

about mother’s drinking. She described mother as attentive

to her children and a “ ‘good mother.’ ”

On October 9, 2020, DCFS filed a petition to declare Ky.R. 

and K.R. dependents under section 300, subdivisions (b) and (j). 

The petition alleged mother placed Ky.R. in a detrimental and 

endangering situation by driving a vehicle at a high speed while 

under the influence of alcohol, and failing to secure Ky.R. in a 

child safety restraint seat. The petition further alleged mother’s 

conduct created a detrimental home environment, which placed 

both children at risk of harm.

At the October 14, 2020 detention hearing, the court 

released the children to mother on the condition that she submit 
4

to random alcohol/drug tests and attend two AA meetings 

per week.

On November 24, 2020, mother told a DCFS investigator 

she “ ‘had a few drinks or two’ ” the night of her arrest, but was 

not drunk while she was driving. Mother also said she did not 

realize she was driving at 100 miles per hour. She claimed she 

had never done anything like that before and was learning from 

the experience. According to mother, she usually does not drink 

around Ky.R., but she was “ ‘stressed’ ” and “ ‘going through 

changes.’ ” She said she had not been contacted about her 

criminal case.

Mother tested negative for drugs and alcohol on 

December 7, 2020, but failed to appear for the next four tests. 

Mother claimed she was not using alcohol because she was 

pregnant, and she did not show up for the tests because her 

name did not appear on the list to do so. As of March 1, 2021, 

mother had attended only two AA meetings, one in early January 

and one in early February.2

The court held a combined jurisdiction/disposition hearing 

on March 5, 2021. Mother’s counsel urged the court to dismiss 

the petition because there was not a current risk of harm to 

the children. Counsel noted that mother understood the severity 

of the situation, this was an isolated incident, and there was 

no evidence showing she has a drinking problem.

The court sustained the petition, explaining it was 

“difficult to understand” how the incident occurred if mother 

2 The record shows mother was on a waitlist for an AA 

program as of December 2, 2020. It is not clear when she was 

accepted into the program.
5

did not have a drinking problem. The court further noted that 

mother attended only two AA meetings and failed to appear 

for alcohol tests, despite claiming to understand the seriousness 

of the incident. The court also expressed skepticism of mother’s 

claim that she drank only three glasses of wine the night of 

the incident.

As to disposition, the court declared the children 

dependents and released them to their parents’ custody after 

finding there were reasonable services available to prevent 

removal. The court signed a case plan requiring mother to 

participate in a 12-step program, submit to weekly alcohol tests, 

and attend individual counseling.

Mother timely appealed.

DISCUSSION

Mother contends there is insufficient evidence supporting 

the juvenile court’s jurisdictional findings under section 300, 

subdivisions (b) and (j).3

“ ‘In reviewing the jurisdictional findings . . . , we look 

to see if substantial evidence, contradicted or uncontradicted, 

supports them. [Citation.] In making this determination, we 

draw all reasonable inferences from the evidence to support 

3 On November 2, 2021, while this appeal was pending, 

DCFS informed us that the juvenile court recently terminated

jurisdiction over the children. DCFS did not request that 

we dismiss mother’s appeal as moot. We take judicial notice 

of the court’s October 29, 2021 minute orders terminating its 

jurisdiction. (Evid. Code, § 452, subd. (d).) Although the orders 

may have mooted mother’s appeal, out of an abundance of 

caution, we exercise our discretion to address her arguments 

on the merits. (See In re C.C. (2009) 172 Cal.App.4th 1481, 

1489.)
6

the findings . . . of the dependency court; we review the record 

in the light most favorable to the court’s determinations; and 

we note that issues of fact and credibility are the province of 

the trial court.’ ” (In re R.T. (2017) 3 Cal.5th 622, 633.)

Under section 300, subdivision (b), the juvenile court may

exercise jurisdiction over a child when 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 of his or her 

parent to “adequately supervise or protect the child.” (§ 300, 

subd. (b)(1).) Under section 300, subdivision (j), the court may 

take jurisdiction over a sibling of a child who has been neglected 

under section 300, subdivision (b) if there is a substantial risk 

the sibling will also be neglected. 

A jurisdictional finding may be based on a single episode 

of endangering conduct if there is evidence showing the conduct 

is likely to recur. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 

993; In re J.N. (2010) 181 Cal.App.4th 1010, 1026 (J.N.).) 

Although evidence of past conduct may be probative of current 

conditions, “[t]o establish a defined risk of harm at the time of 

the hearing, there ‘must be some reason beyond mere speculation 

to believe the alleged conduct will recur.’ ” (Yolanda L., at p. 993;

In re D.L. (2018) 22 Cal.App.5th 1142, 1146.) Whether a child 

is still at risk due to a parent’s past conduct turns on whether 

that conduct “is ongoing or likely to continue.” (In re Daisy H.

(2011) 192 Cal.App.4th 713, 717; Yolanda L., at p. 993.)

“In evaluating risk based upon a single episode of 

endangering conduct, a juvenile court should consider the nature 

of the conduct and all surrounding circumstances. It should also 

consider the present circumstances, which might include, among 

other things, evidence of the parent’s current understanding of 
7

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. The nature and circumstances 

of a single incident of harmful or potentially harmful conduct 

may be sufficient, in a particular case, to establish current risk 

depending upon present circumstances.” (J.N., supra, 181 

Cal.App.4th at pp. 1025–1026.)

Here, the juvenile court took jurisdiction over the children 

after finding mother drove Ky.R. at 100 miles per hour while 

intoxicated. Mother further increased the risk to the child 

by not properly securing her in a car seat. Mother does not 

challenge these findings. She also concedes the incident was

extremely serious, as there was a very real risk that Ky.R. 

would be severely injured or killed.

Nevertheless, mother insists the court erred by taking

jurisdiction over the children because there is insufficient 

evidence to establish a substantial risk that a similar incident

will recur. In support, she points out that she consistently 

expressed an understanding of the severity and seriousness of 

her conduct, tested negative for alcohol, attended AA meetings, 

and stopped drinking alcohol after her arrest. In addition, 

DCFS reported her children were comfortable, happy, and 

healthy in her care, and none of her relatives expressed concerns 

about her ability to parent. Mother also insists there is no 

evidence that she drinks regularly, has a substance abuse issue, 

or engaged in similar conduct in the past.
8

Mother contends this case is similar to J.N., supra, 181 

Cal.App.4th 1010, in which the court reversed jurisdictional 

findings premised on a single incident of drunk driving. There, 

the father drove under the influence with his three children and 

intoxicated wife. The father crashed into a light pole, injuring 

two of the children, and both parents were taken into custody. 

(Id. at pp. 1014–1015.) The reviewing court recognized the 

“profound seriousness of the parents’ endangering conduct,” 

but concluded there was no evidence from which to infer a 

substantial risk that their behavior would recur. (Id. at p. 1026.) 

The court noted the parents were remorseful, loving, and willing 

to learn from their mistakes. (Ibid.) There was also no evidence 

of ongoing substance abuse, or anything else indicating the 

parents’ “understanding of the risks of inappropriate alcohol 

use” was “so materially deficient” to render them “unable 

‘to adequately supervise or protect’ the children.” (Ibid.) 

Further, as of the jurisdiction hearing, the father was

incarcerated, and the criminal court had placed the mother 

under supervised release and ordered her to complete 

substance abuse and parenting programs. (Ibid.)

DCFS argues this case more closely resembles In re M.R.

(2017) 8 Cal.App.5th 101 (M.R.), which also involved a single 

incident of drunk driving. In M.R., the court took jurisdiction 

over two children after finding their mother drove 80 miles 

per hour with a BAC of .14 percent while the children were not 

properly restrained by seat belts. (Id. at p. 103.) The father was 

a passenger in the car and also intoxicated. The parents initially 

agreed to cooperate with DCFS. (Id. at p. 104.) Later, however, 

they insisted the mother was not drunk and claimed they did 

not need services. (Id. at p. 105.) As of the jurisdiction hearing, 
9

the mother had completed three parenting classes and planned 

to enroll in substance abuse and individual counseling. (Id. at 

p. 106.)

In affirming the jurisdictional findings, the Court of Appeal 

distinguished J.N. primarily on the basis that the parents’ 

minimization of the mother’s conduct “call[ed] into question 

their general judgment.” (M.R., supra, 8 Cal.App.5th at p. 109.) 

The court further noted the parents’ acceptance of responsibility 

worsened over time, the mother had not participated in an 

alcohol education program, and the parents had engaged in 

a prior alcohol-related episode of domestic violence around

four years earlier. (Id. at pp. 104, 109–110.) 

We agree with DCFS that this case more closely resembles 

M.R. than J.N. Like the parents in M.R., mother minimized 

the extent of her drinking on the night of her arrest, and her 

acceptance of responsibility seemed to diminish over time. 

According to the police report, mother smelled of alcohol, failed 

field sobriety tests, and had a BAC of .13 percent, well over 

the legal limit to drive. Despite this, she told the officers she 

drank only one and a half glasses of wine several hours earlier. 

Mother subsequently gave a somewhat more reasonable estimate 

of her drinking, telling a social worker she had three glasses of 

wine that night. A few months later, however, mother seemed 

to backtrack, inexplicably claiming she only “ ‘had a few drinks 

or two’ ” and was not drunk while she was driving. Mother’s

minimization of her conduct and insistence that she was not 

drunk, despite overwhelming evidence to the contrary, calls into 

question her general judgment. (See M.R., supra, 8 Cal.App.5th 

at p. 109; see also In re Gabriel K. (2012) 203 Cal.App.4th 188, 

197 [“One cannot correct a problem one fails to acknowledge.”].)
10

The juvenile court could also reasonably conclude that, 

like the parents in M.R., mother had not made a serious effort to 

resolve whatever issues led her to drive Ky.R. while intoxicated. 

Mother suggested she drove while drunk because she was 

stressed and “ ‘going through changes,’ ” but she offered no plan

for how she intended to cope with those issues in the future.

Although mother enrolled in an AA program, she attended 

only two meetings over the course of several months. Mother 

points out that she attended the same number of AA meetings 

as the father in J.N. While true, the father in J.N. also enrolled

in a non-AA substance abuse prevention program, something 

mother did not do. (J.N., supra, 181 Cal.App.4th at p. 1015, 

fn. 4.) Further, unlike the parents in J.N., mother was not 

subject to criminal court orders or supervision that might help 

prevent a recurrence.

4

There is also evidence that mother continued to drink 

alcohol after her arrest, despite her claims otherwise. As of the 

jurisdiction hearing, mother had missed her four most recent 

alcohol tests, which the court could consider to be positive.5

4 Mother suggests she will be subject to criminal court 

supervision in the future given she admitted driving while 

intoxicated. Even if true, the record does not indicate when 

that supervision will begin. Mother, in fact, told DCFS she 

had not heard from the criminal court and did not know the 

status of her case as of November 2020.

5 The juvenile court erroneously remarked at the hearing 

that mother did not appear for any alcohol tests. In fact, mother 

appeared and tested negative for alcohol in September and 

December 2020. However, given the timing and frequency of 

mother’s missed tests, we are confident the court would have 

sustained the petition had it considered the negative tests.
11

(See Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 

1343 [“we must consider the missed [drug] tests to be positive 

tests”].) Contrary to mother’s suggestions, the court was not

required to accept her excuses for failing to appear, or her 

insistence that she stopped drinking alcohol after her arrest. 

Indeed, given mother’s dubious claims about the extent of her

drinking the night of her arrest, the court could reasonably 

conclude she lacked all credibility on the subject of her alcohol 

use.

Mother suggests her failure to attend more AA meetings 

and submit to alcohol testing should not be used against her 

because the juvenile court could not order her to participate 

in services before taking jurisdiction over the children. (See 

In re E.E. (2020) 49 Cal.App.5th 195, 209 [“before jurisdiction, 

the court can issue . . . orders directing the social services agency 

to provide services, but it cannot order or otherwise compel the 

parent to cooperate with the agency”].) While mother is correct 

that the court could not order her to participate in services, it 

was free to use her failure to do so as evidence at the hearing 

on the petition. (Ibid.)

We acknowledge there is evidence from which the juvenile 

court could have found mother’s conduct is not likely to recur. 

On appeal, however, we must view the evidence in the light 

most favorable to the court’s determinations. (In re R.T., supra, 

3 Cal.5th at p. 633.) For the reasons discussed above, there is 

substantial evidence showing an ongoing risk to both children. 

The court, therefore, properly sustained the petition under 

section 300, subdivisions (b) and (j).
12

DISPOSITION

We affirm the juvenile court’s orders.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

WINDHAM, J.

 Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.