L. A. Cnty. Dep't of Children & Family Servs. v. Marina F. (In re Andie)

• Decision Date: 13 December 2021
• Docket Number: B313312
• Parties: In re ANDIE A. et al., Persons Coming Under the Juvenile Court Law. v. MARINA F., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
• Court: California Court of Appeals Court of Appeals

In re ANDIE A. et al., Persons Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
v.
MARINA F., Defendant and Appellant.

B313312

California Court of Appeals, Second District, Seventh Division

December 13, 2021

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. 21CCJP01052A-D, Terry T. Truong, Juvenile Court Referee. Affirmed.

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Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Senior Deputy County Counsel, for Plaintiff and Respondent.

PERLUSS, P. J.

Marina F., the mother of now-12-year-old Andie A., 10-year-old Albert A., III (Albert), six-year-old Benjamin A. and 10-month-old Timothy A., appeals the juvenile court's jurisdiction finding and disposition order declaring the children dependents of the court after the court sustained a petition pursuant to Welfare and Institutions Code section 300, subdivision (b)(1).^[1]Marina contends the court's jurisdiction finding as to her was not supported by substantial evidence and the court abused its discretion by ordering her to participate in parenting classes and individual counseling. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Petition

In late January 2021 the Los Angeles County Department of Children and Family Services (Department) received a report Marina had tested positive for marijuana at the time of Timothy's birth. Timothy tested negative for marijuana at birth, but further testing on his umbilical cord blood was positive for marijuana. Marina admitted to the hospital social worker that she had smoked marijuana until she found out she was pregnant with Timothy, which was not until she was 24 weeks pregnant.

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Marina explained she and the children's father, Albert A., Jr. (Father), smoked marijuana to alleviate pain. They did not smoke in the presence of the children. The hospital social worker stated Marina was bonding well with Timothy and was breastfeeding.

A Department social worker met with the family on January 25 and 26, 2021 at the motel where they were living. The family had previously been living with Marina's mother, Anna G. However, other minor relatives who were under the supervision of the Department lived in the home, and Marina and Father could not get approval from the Department to reside there due to Marina's and Father's criminal records. Accordingly, they moved out in the summer of 2020 and had been unhoused since.

Marina told the social worker she had smoked marijuana regularly but stopped when she learned she was pregnant with Timothy. She believed the positive test was due to marijuana still being in her system from her prior use approximately three months earlier. She said she was upset about the positive test and "never thought that it would be an issue." When she was smoking, Marina kept her pipe in a backpack away from the children. The social worker observed Marina was calm, rational and cooperative and appeared to be bonding appropriately with Timothy.

Father told the social worker he smoked marijuana every day for recreational purposes. He said he kept his pipe in the car and did not smoke in front of the children. He confirmed Marina had not smoked marijuana since learning she was pregnant with Timothy. Father stated he had been sober for 14 years and rarely drank alcohol. However, the social worker later learned

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Father had been arrested in December 2020 for driving under the influence of alcohol. Marina, who was approximately eight months pregnant at the time, had been in the car with Father when they got into an altercation with another driver and police were called. Father and Marina maintained the police report was incorrect and Marina had been the one driving.

The social worker interviewed Andie and Albert, who both stated their parents argued and yelled but were not physically violent. Andie said Father smoked cigarettes, but she did not know what kind. He typically smoked in the car and would have the children "wait somewhere else." She said Marina also smoked but she did not know the last time her mother smoked. Albert said his parents did not do drugs but Father smoked cigarettes outside.

The social worker interviewed Anna on March 3, 2021. Anna stated Marina had used marijuana daily until learning she was pregnant with Timothy. Anna expressed her belief Father was abusive toward Marina based on marks and bruises Anna had seen on Marina's face. Marina later told the social worker the bruises were a result of her work as a dog groomer.

The parents agreed to on-demand drug testing by the Department. Marina failed to appear for a test on February 11, 2021 and tested positive for low levels of marijuana on February 17, 2021. Father tested positive for marijuana on February 11, 2021.

On March 5, 2021 the Department filed a nondetain petition pursuant to section 300, subdivisions (a) and (b)(1), alleging the parents had a history of violent altercations that endangered the children's physical health and safety and Marina had a history of substance abuse and was a current abuser of

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marijuana, which interfered with her regular care and supervision of the children. In a separate count the Department alleged Timothy had tested positive for marijuana at birth as a result of unreasonable acts by Marina that placed Timothy at risk of physical harm. The Department also alleged Father had a history of substance abuse and was a current abuser of marijuana and alcohol, which rendered him incapable of providing regular care for the children.

At the March 10, 2021 hearing on the petition the court found Father was the presumed father of the children. The children were released to their parents under the temporary supervision of the Department. The Department was ordered to provide services, including drug testing for the parents.

2. The Jurisdiction/Disposition Report

The Department filed a jurisdiction/disposition report on April 23, 2021. The Department stated it had not yet been able to conduct additional interviews with the family but was concerned by the parents' "denial and gross lack of insight regarding alleged substance abuse."

An addendum report filed May 5, 2021 contained a summary of a follow-up interview with Marina. Marina again stated she had not smoked marijuana since learning she was pregnant with Timothy in November 2020. She believed her positive tests in late January and February 2021 were due to her previous marijuana use. She said the positive tests were "frustrating; I didn't expect him (Baby Timothy) to have it in his system. I thought it was enough time to be out of my system." Marina explained she would smoke marijuana when she got frustrated to help her calm down. She had not been smoking recently because she was breastfeeding. Marina stated the

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longest period she had refrained from smoking was during her pregnancy with Andie. Marina also admitted she had a temper and was working on having more patience with Father and the children.

An addendum report filed June 3, 2021 contained a summary of a follow-up interview with Andie. Andie stated she knew marijuana was a drug and it looked like broccoli. When asked whether her parents smoked marijuana, she answered, "Yes, my mom not so much but my dad, kinda." Andie said she had seen Father smoke marijuana in the car, "They [the parents] ask us to get out of the car; they can see us. We are in a safe place, either by a tree or a rock. We mess with each other and play around." She said she had not seen her parents act strangely after smoking.

In the time since the detention hearing Father had tested positive for marijuana on March 18, 2021 and failed to appear for four tests between March 17, 2021 and May 14, 2021. Marina tested negative on March 18, 2021 and May 11, 2021 but failed to appear for three tests between April 26, 2021 and May 19, 2021.

3. The Jurisdiction/Disposition Hearing

At the continued jurisdiction hearing on June 3, 2021 Marina's counsel asked the court to dismiss the petition, arguing there was no evidence Marina had a substance abuse issue and, even if she was using marijuana, her positive tests showed extremely low levels in her system. Marina's counsel also argued there was no evidence any substance use interfered with her ability to care for the children. Father's counsel also requested the petition be dismissed.

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Minors' counsel requested the court sustain the petition on the substance abuse counts, arguing the parents had been evasive and unwilling to be interviewed initially.

The court amended the petition by interlineation, removing the allegation Marina was a current abuser of marijuana, adding that her history of substance abuse was unresolved and including Timothy's positive toxicology result in the allegation regarding Marina's substance abuse. As amended, the allegation states, in part, that Marina "has an unresolved history of substance abuse including marijuana use. The child Timothy [A.] had a positive toxicology screen for marijuana at birth." The court dismissed the counts alleging domestic violence and the separate count concerning Timothy's positive toxicology test. The court sustained, as amended, the counts regarding Marina's and Father's substance abuse.

In explaining its ruling the court stated that, despite Marina's denials, her testing history did not support the conclusion she had stopped smoking marijuana. The court stated, "[Marina] has so many no shows that it is unclear to this court whether she did, in fact, stop and she is telling the truth to the social workers and this court."

Turning to disposition Marina's counsel objected to any parenting or counseling requirements and argued separate programs would be financially burdensome.

The...