Filed 3/9/21 In re M

. M. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re M

. M.

, A Person Coming Under Juvenile Court Law.

_________________________ __ ______ LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

DEBRA M.

,
Defendant and Appellant. B 306 682

(Los Angeles County Super. Ct. No. 1 7LJ JP0 0 1 56 B )

APPEAL from an order of the Superior Court of Los Angeles County, Nichelle Blackwell, Juvenile Court Referee

. Affirmed

.
Erin Riley Khorram , under appointment by the Court of Appeal, for Defendant and Appellant.

Mary C. Wickham , County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani , Principal Deputy County Counsel, for Plaintiff and Respondent.

________________________2 Mother D.M. appeals from the dispositional order following
the adjudication of her then t wo

- year

- old son, M.M. ( c hild) as a dependent child

. Specifically, she contends the court erred in removing her son from her custody because reasonable means existed to protect him without removing him from her home. She
further contends the court erred i n finding the Department of Children and Family Services ( the Department ) had made
reasonable efforts to avoid removal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND

1. Prior Services
Child was born in September 2017, when m other was 19 years old

. Mother was herself a dependent, and was still receiving services . Those services would continue until she turned 21 in January 2019. In October 2017, the Department received a referral alleging physical abuse and general neglect. The abuse allegation was unfounded, but the general neglect was
substantiated. 1 A non

- detained dependency case was opened. In February 2018, the petition was dismissed without prejudice due

to m other agreeing to a voluntary family maintenance contract with the Department , w ith the goal of keeping c hild in her home. (Welf. & Inst. Code, § 301.) 2 Mother participated in counseling and random drug testing. She tested negative, although she

1 The allegation involved m other leaving her placement with the child for a number of days. Upon her return, m other’s behavior “began to escalate” and, while holding her newborn, she threatened to punch the caregiver and threatened other adults in the home.

2 All further undesignated statutory references are to the Welfare & Institutions Code

.3

missed some tests. The family maintenance contract ended on July 25, 2018.
2. The April 30, 2020 Incident The current case brought c hild to the attention of the Department when m other and c hild found themselves in the middle of a drug deal. On April 30, 2020, police planned a controlled buy of
cocaine base in an area known for high narcotics activity

. They
used a n informant as the purchaser. The purcha ser met w ith a man (referred to in the police report as Suspect 2 ) at an intersection and told him he wanted to buy rock cocaine. Suspect
2 entered the informant’s vehicle and directed him to another
intersection some distance away . There, the info rmant gave Susp ect 2 predesignated buy money. Suspect 2 exited the car and placed a call. Thereafter, another vehicle, driven by Suspect 1, pulled up. Suspect 1 exited the car and met Suspect 2. Suspect 2 handed Suspect 1 the cash. As Suspect 1 was handing Suspect 2 the cocaine base, police converged. Both suspects were arrested
without incident.
Police found m other and c hild in the back seat of Suspect
1’s car. A dozen liquor bottles, with security devices attached (consistent with the bottles being stolen ) were next to m other.
C hild was not in a car seat.
Mother was “irate and chaotic when law enforcement asked her to step out of the vehicle. She was making growling sounds and screaming noises, and was not responsive to law
enforcement.” Mother resisted and the officers “utilized use of force strategy” against her. A social worker from the Department’s Multi

- Agency Response Team, CSW Diego Lopez,
was calle d to the scene. Prior to interviewing m other, Lopez4

“observed the mother to need about five minutes to gather herself as she was growling and screaming loudly

. ” Mother eventually
calmed. When asked to explain her presence at the scene, she said
she ha d met Suspect 1 at the grocery store a couple days ago , and had asked him for a ride to the store. She denied any awareness of criminal activity and said she did not even know his name. When asked about the lack of car seat, she said she did not think

mu ch of it because “ ‘we only came down the street.’ ” CSW Lopez reminded her of the importance of a car seat and m other agreed, expressing remorse and promising to comply with the law in the
future. When asked about drug use, m other reported that she us ed marijuana weekly. CSW Lopez asked if she would drug test to rule out the use of any illicit substances, and m other agreed ; she also stated that she may test positive for methamphetamine, as
she had used last weekend when out “with some friends she met
on the streets.” She denied using drugs in the presence of her child, explaining that when she had used methamphetamin e ,

c hi ld was cared for by a friend at m other’s transitional home. 3 Mother has no family she can turn to for support. Child’s father has been identified by first name only . He is not a presence in

c hild’s life nor a party to this appeal

. Law enforcement to ok m other and c hild home. CSW Lopez conducted a home assessment; there were no concerns regarding safety in the home

. Lopez also believed the child was healthy
and safe.

3 Mother lived in a home for low income mothers and their children. She reported that times had been diffic ult and she did not work. Mother’s criminal history includes prostitution.5 Mother drug tested the next day, May 1, 2020. She was positive for methamphetami ne, amphetamine, and marijuana.
3. Detention On May 6, 2020, CSW Lopez filed an application for an
authorization for removal. An order was obtained and c hild was
detained th e next day.
4. Petition On May 11, 2020, the Department filed a petition to declare

c hild a dependent under section 300, subdivision (b). 4 Two paragraphs were alleged to support dependency. Ultimately, the
first would be sustained and the second dismissed. 5
The sustained first paragrap h alleged mother “ha s a history of substance abuse and is a current abuser of methamphetamines, amphetamines, and marijuana, which renders the mother incapable of providing regular care and supervision of the child. On 05/01/2020, the mother had a

4 This provides a child may be adjudicated dependent if “[t] he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of

. . . the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s .

. . substance abuse.”

5 The dismissed paragraph was solely directed to the April 30, 2020 incident, not the broader quest ion of m other’s substance abuse and her inability to care for c hild. It alleged that m other put c hild in a “detrimental and endangering situation in that cocaine base and 12 bottles of alcohol were found in a vehicle with the child” and also that he was n ot secured in a car seat. The court did not find this allegation untrue; it simply found insufficient evidence that there was a current risk to child sufficient for jurisdiction based on this allegation.6

positive toxicology screen for amphetamines, methamphetamines, and marijuana. The child is of such young age requiring constant care and supervision and the mother’s substance abuse interferes with providing regular care and supervision of the child. The
mother’s substance abuse e ndangers the child’s physical health and safety and places the child at risk of serious physical harm, damage and danger.” At the May 14, 2020 detention hearing, the court directed the Department to provide mother with all appropriate low and

no cost re ferrals for services. The court specifically stated, “Those referrals to include a testing re f erral with result in the next report.” CSW Lopez had indicated in his detention report that referrals for parenting, individual counseling, substance abuse,
and random drug testing had already been provided to mother. The matter was set for an adjudication /disposition hearing
5. Progress Before the Adjudication /Disposition Hearing Mother had a number of drug tests between the May 14, 2020 detention hearing and th e July 8, 2020 adjudication hearing. Mother did not test positive for methamphetamine or amphetamine after her first, May 1, 2020, on

- demand test. However, she had two missed tests. In addition, her drug tests indicated that she continued using marijuana. 6
Her test results were:

6 On appeal, mother asserts that her “test results showed a general trend toward reduced amounts of marijuana present in her system.” On the contrary, the numbers twice increased from their last reported value, indicating that mother used marijuana at least twice during this period

– once before May 22 and once before June 18. Date Marijuana metabolites7 (move this to left) Mother also began individual counseling; she had three sessions and appeared motivated and cooperative. She had also enrolled in parenting. Mother had not yet enrolled in substance abuse treatment; she would testify that she was place d on a waiting list.
6. The Department ’s Report for the Adjudication/Disposition Hearing The Department’s report for the Adjudication/Disposition hearing contained further statements from m o ther regarding her drug use and how it impact ed c hild. Mot he r admitted that,
before c hild was born, she was using methamphetamine “ ‘on and
off.’ ” She denied being a current user of methamphetamine, and claimed that she had simply used once when “ ‘hanging out’ ” with friends. She again said she left c hild with a friend at home
when she used , but was “not able to provide the name or contact information of the friend that provided care and supervision” for
the child. 7 Mother admitted that she used to smoke marijuana “ ‘all the time,’ ” but claimed to have rece ntly stopped using because

7 Mother did identify a friend as her support system, but did not identify her as the person who cared for child when she was using methamphetamine. May 1, 2020 899 NG/ml May 22, 2020 >4000 NG/ml May 28, 2020 No s how
June 4 , 2020 76 NG/ml
June 9 , 2020 No show
June 1 8 , 2020 626 NG/ml
June 2 5 , 2020 174 NG/ml8

she wanted to focus on education, employment, and reunifying
with her child. “Mother stated that she feels that she is receiving resources from the Department and does not need to smoke Marijuana at this time.” Mother wanted to begin training to become a security guard

, so needed to stop using marijuana. As to what brought her and c hild to be in the backseat of a car during a drug deal, m other claimed that she had been running out of milk for c hild and called her friend for a ride to the store so she could buy more. She claimed she was unaware of the
alcohol in the vehicle. She also regretted not using a car seat and requested Department assistance in obtaining one. She accepted
that sh e needs to make better decisions for her son’s safety.
7. The Adjudication/Disposition Hearing The combined Adj udication/Disposition hearing was held on July 8, 2020.
As to jurisdiction, m other’s counsel conceded the case was about “a mother who needs help and is willing to get help and acknowledges her use of drugs.” There were no witnesses on the
issue of jurisdiction , and the court found c hild dependent under section 300, subdivision (b ), based on m other’s drug abuse, as alleged in the first paragraph of the petition. The court found that “mother has a substance abuse problem” and stated, “I do believe that the mother’s current use of methamphetamine and getting into a car with individu als who had stolen merchandise and possibl y engaging in narcotics sales, individuals who she has known for only two days, by her own statements, indicates mother is making bad choices and bad decisions, possibly because of her methamphetamine use.”
The court then turned to disposition, and heard evidence on whether removing c hild from m other was necessary. Mother9

submitted a letter confirming that she had started individual counseling and also testified herself. She called as a witness the Department’s Dependency Investigator (DI) Sonia Sandoval

. DI Sandoval was called, in part, in order to support

m other’s argument that the Department had not provide d m other
with the necessary referrals. Sandoval testified that she did not provide m other with referrals because CSW Lopez already had. Mother did not call Lopez to testify. DI Sandoval also testified that the Department had considered whether to recommend keeping c hild in m other’s home supported by family pre servation services. The Department declined to do so because of the following
circumstances : (1) m other’s ongoing marijuana use; (2) the Department’s i nab ility to identify, and therefore assess, anyone who allegedly cared for c hild while m other was under the influence; (3) m other’s recent use of methamphetamine; (4) m other’s missed drug tests; (5) m other’s previous participation in a program with substance abuse treatment; (6) c hild’s tender years; (7) m other’s lack of a support system; (8) m other’s lack of current participation in a substance abuse program; and (9) m other’s lack of stable housing. Mother testified that she had been trying to get into a substance abuse program but was initially placed on a waiting list. She asserted that she was presen tly being assessed for a program which she had found on her own. The trial court reasonably found m other’s testimony regarding drug testing implausible

. Mother claimed that she had never missed a test and called every day to make sure her letter

wa s not called. She asserted that on June 25

– less than two weeks before the hearing

– she had been changed from random10

testing to weekly testing. When asked when she last used marijuana, she said it was “[a] month and a half ago, the day they switched ” the testing schedule

. 8 Mother’s counsel argued for placement of c hild in m other’s home with services. Counsel argued that m other was willing to do programs and had done everything she could to enroll, even without the Department’s assistance. Counsel argued that there was only one positive drug test for methamphetamine, and mother had stopped using marijuana, as decreasing levels
confirmed. Mother’s counsel specif ically requested the court find that reasonable services to prevent removal had not been provided. The trial court concluded that removal was necessary. Although the court did not accept all the reasons offered by the Department, the court found that m o ther’s drug use created too great a risk to c hil d. T he court recognized that, although marijuana is legal, “if someone is using it and under the influence of it, they need to not be caring for their child, especially a two

year

- old child.” The court stated that m other “stated some random person at her tran sitional housing was caring for the child, but she failed to give a name so I find that to be dishonest and lacking in credibility to this court.”
The court also cited mother’s recent use of methamphetamine

. The court stated that it appeared that mother was under the influence of methamphetamine when the arrest
was made. The court w as particularly concerned that mother’s

8 After testimony closed and c ounsel was arguing, mother attempted to volunteer that she had made a mistake and the date of the change was actually “the 15th.” Even June 15 was not a month and a half prior to the July 8 hearing.11

methamphetamine use “impacted mother’s ability to make the right judgment” such as whether to “get in a car with a two year
old withou t a car seat, with someone she had known for only two days, noting that there were bottles of alcohol with a security tag still on them right next to her in the car. ” An additional basis for the court’s ruling was m other’s missed and positive drug tests, including those showing increases in her marijuana metabolites.
The court summe d up its dispositional findings, “This is a young child of tender years and it is important to see that the mother has control over her addiction. [¶] This addiction will no t just go away. One has to exercise the proper tools, the proper techniques, the proper relapse prevention skills to avoid relapse, and that means not being in an environment with drug users, drug abusers or drug dealers and maintain a sober life

- style an d
a sober environment.” The court found clear and convincing evidence existed that returning c hild would pose a substantial
risk of detriment and no reasonable means then existed to protect
him other than removal. The court also found the Department ma de reasonable
efforts to avoid removal. Mother was granted monitored visitation and reunification
services. Mother filed a timely notice of appeal.
DISCUSSION On appeal, m other does not contest the court’s finding of jurisdiction, but challenges the court’s dispositional order to the

extent the dependency court did not return c hild to her custody. Specifically

, m other argues reasonable means existed to protect

c hild in her home, via family preservation services. In addition,

m other argues the Department did not make r e asonable efforts to prevent removal.12

1. Sufficient Evidence Supports Child’s Removal “Before the court may order a child physically removed
from his or her parent, it must find, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home and that there are no reasonable means by which the child can be protected without removal. [Citations.] ” ( In re
Cole C. (200 9) 174 Cal.App.4th 900, 917.) “ The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. [Citations.] In this regard, the court may consid er the parent’s past conduct as well as present circumstances. [Citation.]” ( Ibid. ) We review the court’s disposition finding for substantial evidence. ( In re Henry V. (2004) 119 C al.App.4th 522, 529.) Because the trial court’s finding must itself be made on clear and convincing evidence, we must take that heightened standard into account in our review. ( In re V.L. (2020) 54 Cal.App.5th 147, 155.) Specifically “ ‘[W]hen reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains
substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. Consistent
with well

- established principles governing r eview for sufficiency of the evidence, in making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnes ses, resolved conflicts in the evidence, and drawn reasonable inferences from the
evidence.’ ” ( Ibid. , quoting Conservatorship of O.B. (2020)
9 Cal.5th 989, 995

- 996.)13 Here, the trial court concluded mother’s unresolved
substance abuse rendered it unsafe for c hild to be returned
home. 9 This was supported by substantial evidence

. Mother
admitt ed using methamphetamine before c hild was born and smoking marijuana weekly during his life. Her previous family
maintenance services includ ed drug testing, confirming that drugs played a role in the prior neglect allegations. That she tested negative at the time, albeit with missed tests, showed that
mother was able to restrain her drug use to some degree. But that she relapsed into regular m arijuana use and at least one incident of methamphetamine use evidenced that she was not stable in sobriety. Mother’s drug use presented a risk of harm to the child in the absence of an identified safe caretaker who could supervise
the child when m other u sed

, and was under the influence of

, drugs. She could not identify the person with whom she left c hild when she used methamphetamine; and, more importantly, she
had the c hild in her sole supervision when she was still impaired by methamphetamine , resultin g in her admittedly bad choices which placed the child at risk.

9 In her reply brief on appeal, mother suggests the evi dence only supports a finding that she “used,” drugs, not that she “abused” them. This argument would go to the jurisdictional finding, which mother did not contest in her opening brief. Jurisdiction under section 300, subdivision (b) is based on substan ce abuse, not substance use. ( In re Drake M., (2012) 211 Cal.App.4th 754, 764.) In any event, the findings that we affirm with regard to the risk to c hild presented by m other’s methamphetamine and marijuana use likewise support the court’s jurisdictional finding of substance abuse.14 On appeal, Mother suggests that “ by the time of the jurisdiction and disposition hearing, the immediate risks the
court identified that resulted from m other’s poor decision

- making
had been ad dressed. ” She notes, in this regard, that she (1) sought Department assistance in obtaining a car seat; (2) was no longer associating with the drug

- dealing suspects; (3) was cooperating with the Department ; and (4) had located a drug program and put her n ame on the waitlist. Notably absent from
her list is any suggestion that she had stopped using drugs. Indeed, she had not. Of her six drug tests following c hild’s initial detention, two showed an increase in marijuana metabolites and

two were no shows. 10 While m other claimed to have stopped using marijuana a few weeks prior to the adjudication/disposition hearing, this short sobriety is insufficient to demonstrate that the
risk had been abated

. Increased Department supervision could not protect c hild
in m other’s home at this point. Given m other’s history of drug abuse, the court could not safely return c hild to m other’s custody without a lengthier term of sobriety . There was simply no
evidence that m other would not again attempt to car e for her toddler while under the influence of drugs.

10 In her brief on appeal, mother states, “Mother acknowledges she missed two opportunities to drug test, which she had undertaken to do, voluntarily.” She then suggests this should not “weigh heavily against her” as the test s were not then
court

- ordered. Mother’s acknowledgement of the missed tests on appeal is in direct contrast to her testimony at the hearing, when, having been given an opportunity to explain why she missed two tests, she simply denied having missed them. Mother’s appellate concession is, in effect, an admission that she was not truthful in her testimony at the disposition hearing.15

2. Substantial Evidence Supports t he Court’s Finding Reasonable Efforts Were Made t o Prevent Removal The juvenile court is required to make a determination
whether reasonable efforts were made to eliminate the nee d for
removal

. (§ 361, subd. (e).) The trial court made a finding that reasonable efforts had been made, but did not specify those efforts beyond stating the Department has evidenced reasonable efforts “by repeated efforts and services they’ve offered m o ther.”
“We review a reasonable services finding to determine if it is supported by substantial evidence. [Citation.]” ( In re A.G. (2017) 12 Cal.App.5th 994, 1001.) S ubstantial evidence supports the court’s finding. CSW Lopez provided mother with low or no cost referrals to parenting, individual counseling, substance abuse, and random drug testing. Indeed, prior to the adjudication/disposition hearing, m other told DI Sandoval “that she feels that she is receiving resources from the Department and does not need to smoke Marijuana at this time.”
DISPOSITION The disposition order is affirmed.

RUBIN, P. J. WE CONCUR:

MOOR, J.

KIM, J.