Opinion
F079857
04-13-2020
In re J.S., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. CRYSTAL S., Defendant and Appellant.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 19CEJ300076-1)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Leanne L. LeMon, Commissioner. Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Smith, J. and De Santos, J.
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Appellant Crystal S. (mother) appeals the juvenile court's jurisdictional finding adjudging J.S., her now one-year-old daughter, a dependent child pursuant to Welfare and Institutions Code, section 300, subdivision (b)(1). Under subdivision (b)(1) of section 300, it must be proved there is a substantial risk the child has suffered or will suffer serious physical harm as a result of the parent's failure to supervise or protect the child. Mother contends the Fresno County Department of Social Services (department) failed to establish she placed J.S. at risk of harm. We affirm.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
Dependency proceedings were initiated in March 2019 when the department received a report that mother tested positive for methamphetamine while giving birth to J.S. The positive results were obtained through a drug screen administered at the hospital. J.S. tested negative for methamphetamine.
Mother denied using methamphetamine. She attributed her positive test result to her living environment, explaining she and the baby's father, Ernie S. (father), had been living in a motel for three months. She remembered "digging through" a friend's purse and may have inadvertently touched methamphetamine, which was then absorbed through her skin. She did not know if there was methamphetamine in her friend's purse but it was a possibility. Another possibility was that she breathed it in.
Mother claimed to have been "clean" since the department was involved with her family in March 2018, a reference to the fact that she was provided family maintenance services for her four older children in 2016 after testing positive for methamphetamine while giving birth to her youngest son. However, she did not comply. In March 2018, she agreed to enter a drug treatment program and the fathers of her children agreed to seek custody of their children. The maternal grandparents agreed to seek legal guardianship of mother's oldest child. Everyone followed through, except mother.
Father denied using methamphetamine but said he smoked marijuana to treat seizures he had been suffering since the age of 10. He had not been to the doctor in years because he could not afford it. He and mother had been in a relationship since June 2018. He was unaware she used methamphetamine. He tested for the department and the results were negative.
J.S. was discharged from the hospital into father's care. They were approved to live with his grandparents under strict instructions that mother was not allowed to leave with the baby or be left alone with her at any time.
However, several days later, the department obtained a protective custody warrant after meeting with the family and discerning they were not going to take measures to protect J.S. The department filed a dependency petition, alleging J.S. fell within the juvenile court's jurisdiction under section 300, subdivision (b)(1) (failure to protect) and placed her in foster care.
The dependency petition alleged two counts, one as to each parent. Count b-1 alleged mother had a history of methamphetamine use, which negatively affected her ability to provide J.S. regular care, supervision and protection. As a factual basis to support the allegation, the department cited mother's positive test result for methamphetamine at the time of J.S.'s birth, making J.S. the second child mother exposed to methamphetamine in utero. Despite receiving family maintenance services in 2016, which included substance abuse treatment, it further alleged, mother continued to use drugs. Count b-2 alleged father knew or should have known that J.S was at risk of drug exposure because he was aware that mother lost custody of her other children because of her drug use.
The department did not attach a copy of mother's positive drug screen to its detention report.
At the detention hearing in March 2019, the juvenile court ordered J.S. placed with father in the home of his grandparents. Mother was living with a paternal aunt. Father agreed not to allow mother any access to J.S. that was not approved by the department. The court ordered the department to offer the parents parenting and mental health services and mother substance abuse services, including random drug testing. The court set a combined hearing for jurisdiction and disposition, which was conducted as a contested hearing in August 2019.
Meanwhile, in June 2019, the department petitioned the juvenile court (§ 388) to order mother to drug test by hair follicle analysis because she was not participating in random drug testing. The court granted the petition.
In its report for the combined hearing, the department recommended the juvenile court allow J.S. to remain in father's custody with family maintenance services and provide mother family reunification services. Mother completed a substance abuse assessment the results of which indicated a need for ongoing random drug testing but not substance abuse treatment. Her test results throughout March and early April 2019 were negative with the exception of a positive result for creatinine on March 21. She did not submit to random drug testing after April 11. She also completed a mental health assessment and was referred for mental health therapy.
Social worker Amanda Ford testified at the combined hearing and was questioned about her knowledge of mother's positive test result for methamphetamine at the time of J.S.'s birth. She was not assigned the case when J.S. was taken into protective custody and did not prepare the detention report which referred to mother's positive result for methamphetamine. She became involved in the case in March or April 2019 after the detention hearing and learned of mother's positive result by reading the social worker's notes. Ford did not receive the drug screen from the hospital and was not aware if one existed. She did not ask mother if she took any medication that might result in a positive result for the drug. She was never trained in the difference between a drug screen and a confirmed drug test. She was unaware that mother's drug screen from the hospital included a statement that an unconfirmed positive result may be useful for medical purposes but did not meet forensic standards. Besides mother's positive drug screen, mother tested positive for opiates on March 6, 2019, and for creatinine. Ford personally reviewed the March 6 results. She could not explain why the report for the hearing reflected that the results on March 6 were negative but stated the testing results from the testing facility were positive. Asked whether the testing facility would report a positive result as negative if mother were taking a prescription medication that could cause the result, Ford testified the facility would report the result as positive but annotate the prescription. She did not know the court approved hair follicle testing for mother so did not arrange it. Ford recalled reading a service log notation that on June 19 mother was sweating profusely when she arrived at the county office and it was difficult to determine if she was under the influence of a substance or coming down from one. Mother reenrolled for drug testing in July.
Mother testified she did not use illicit substances while pregnant with J.S. and was surprised that she tested positive for methamphetamine. As for opiates, she delivered J.S. by cesarean section and was given an opiate for pain. She believed they ran the sample that yielded a positive result on May 6, 2019, a second time and it was negative.
Mother's attorney argued the hospital's drug screen was insufficient to prove she used methamphetamine while pregnant with J.S., contending the results were unconfirmed and designed to assist with medical treatment not substitute for forensic evidence. Counsel further argued there were no subsequent positive tests for methamphetamine and the one positive result for creatinine was sandwiched between negative test results. The positive result for opiates was explained by the medication she received while in the hospital.
The juvenile court found the jurisdictional count as to mother true by a preponderance of the evidence based on the positive drug test result at birth and her history of drug use. The court did not give much weight to mother's positive result for opiates, finding her explanation reasonable. The court noted mother stopped drug testing on April 11, 2019, but recognized she was not required to drug test. It also noted concern that she was potentially under the influence of a substance on June 19, 2019, and stated, "[T]he minor is very young and unable to protect herself and the court has concerns regarding the mother's custody." The court found insufficient evidence father knew or should have known mother was using drugs at the time of J.S.'s birth and found the count b-2 allegation not true.
As to disposition, the juvenile court found by clear and convincing evidence it could not place J.S. in mother's custody without exposing her to a substantial risk of harm and ordered her removed. The court ordered family maintenance services for father and family reunification services for mother, including weekly supervised visits, and set the next review hearing for February 2020. It granted the department discretion to arrange hair follicle testing for mother.
DISCUSSION
The juvenile court may adjudge a child a dependent under section 300, subdivision (b)(1), as relevant here, 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 failure or inability of his or her parent ... to adequately supervise or protect the child ...." "The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm." (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.) Evidence of past conduct may be probative of current circumstances. (In re James R. (2009) 176 Cal.App.4th 129, 135-136, abrogated in part on another ground in In re R.T (2017) 3 Cal.5th 622, 628.) To 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. [Citation.]" (Id. at p. 136.)
We review a challenge to the sufficiency of the evidence to support a jurisdictional finding for substantial evidence. In so doing, we draw all reasonable inferences from the evidence to support the findings of the juvenile court and review the record in the light most favorable to the court's determinations. Issues of fact and credibility are the province of the juvenile court. We do not reweigh the evidence or exercise independent judgment but determine if there are sufficient facts to support the court's findings. (In re I.J. (2013) 56 Cal.4th 766, 773.)
"[I]n dependency proceedings, the child welfare agency must prove by a preponderance of the evidence that the child who is the subject of the petition comes under the court's jurisdiction. [Citation.] On appeal, the parent has the burden of showing there is insufficient evidence to support the order." (In re N.M. (2011) 197 Cal.App.4th 159, 168.)
Mother contends there was insufficient evidence to support a true finding under section 300, subdivision (b)(1) because there was "zero" evidence she used methamphetamine while pregnant with J.S. Specifically, she argues a positive result for methamphetamine on a hospital drug screen is insufficient proof because it is unconfirmed. She further argues the initial drug screen was invalidated when she was tested again and tested negative for methamphetamine. Without evidence she used methamphetamine as alleged, she asserts, there is no basis for jurisdiction. We conclude substantial evidence supports the juvenile court's finding mother used methamphetamine while pregnant with J.S.
A mandated reporter alerted the department to mother's positive drug screen for methamphetamine at the time of J.S.'s birth. Based on mother's history of drug use and the positive result, the department alleged in the petition that she continued to use drugs. The juvenile court found prima facie evidence supported the allegation at the detention hearing. At the jurisdictional hearing, mother's attorney attempted unsuccessfully to discredit the evidentiary value of the hospital drug screen. He elicited from the social worker that she did not see the actual results, did not know the difference between a drug screen and a confirmed drug test and was unaware their use was intended for medicinal not forensic purposes. However, establishing the social worker's limited knowledge of the drug screen result does not render it invalid. Trial counsel could have but did not produce any evidence that a drug screen used to detect the presence of drugs for the purpose of treating a newborn is insufficient when positive to show that the donor (mother) consumed the identified drug. Here, in the absence of contradictory evidence, the juvenile court could infer from mother's positive drug screen that she ingested methamphetamine. On appeal, appellate counsel attempts to introduce evidence from an internet source that screening tests are prone to producing false positives and that methamphetamine can be absorbed through the skin as mother claimed occurred in her case. The evidence, however, was not received or judicially noticed by the juvenile court. Such extrajudicial evidence is not reviewable on appeal, except in rare and compelling circumstances not present here. (In re Zeth S. (2003) 31 Cal.4th 396, 400.)
As to mother's contention subsequent testing produced a negative result for methamphetamine, the record does not support her claim. The only evidence of conflicting test results concerned mother's positive result for opiates on March 6, 2019. She testified a negative result was produced when the test was repeated. However, there is no evidence mother's positive drug screen for methamphetamine was invalidated by further testing. With no evidence to refute the reliability of the drug screen or the validity of the test result, the juvenile court could properly find that mother used methamphetamine while pregnant and giving birth to J.S.
Mother further contends there was insufficient evidence her drug abuse posed a substantial risk of harm to J.S. Her history of drug use, she argues, is irrelevant without proof she tested positive for methamphetamine at J.S.'s birth. Evidence she did not drug test after April 11, 2019, is not probative, she claims, because she was not required to drug test and evidence she sweated profusely without more is purely speculative on the issue of whether she continued to use drugs.
We conclude the juvenile court's finding mother tested positive for methamphetamine, which we have affirmed, and her history of drug use support a finding mother continued to use methamphetamine. In May 2016, approximately three years before J.S. was born, mother's four other children were removed from her because she tested positive for methamphetamine while giving birth to her youngest son. She refused to participate in voluntary family maintenance services and was still using methamphetamine in March 2018 when the department decided to place the children with relatives. Although she agreed to participate in drug treatment at that time, there is no evidence that she did. A year later, she tested positive for methamphetamine while giving birth to J.S. Instead of admitting she was addicted to methamphetamine, mother attributed her positive result to the unlikely scenario she absorbed the drug through her skin or lungs. On that evidence, the court could conclude mother was using methamphetamine and decide that taking jurisdiction over J.S. was the proper way to protect her. Other evidence suggesting drug use, such as mother's cessation of drug testing and profuse sweating, is indeed insufficient on its own, however, the court did not rely solely on it. Further, though limited in evidentiary value, it does tend to support the court's finding when considered under the totality of the circumstances.
The cases mother cites are distinguishable because they involved older children. The minor in In re Rebecca C. (2014) 228 Cal.App.4th 720 was a teenager who was being well taken care of by her mother. When confronted with a positive test result, she entered drug treatment. The appellate court found insufficient evidence she posed a sufficient risk of harm to warrant jurisdiction under section 300, subdivision (b) and reversed. (Id. at pp. 721, 727-728.) In re L.C. (2019) 38 Cal.App.5th 646 involved a six-year-old child whose legal guardian used methamphetamine but did not keep it in the house and placed the child in the care of a competent caregiver when he used it. He also fulfilled all of his parenting duties and the child was healthy, well cared for and always supervised. The appellate court found insufficient evidence his use of methamphetamine placed the child at risk of harm and reversed the jurisdictional order. (Id. at pp. 648-654.)
The other case mother cites, In re David M. (2005) 134 Cal.App.4th 822 (David M.) involves an infant and a two year old but is otherwise distinguishable. In David M., the juvenile court found the children, David and his newborn brother, A., were dependents described by section 300, subdivision (b) based on the parents' history of mental illness and the mother's use of marijuana while pregnant with A. and unresolved history of substance abuse. A. tested negative for all controlled substances, including marijuana, at the time of his birth. The mother denied using marijuana while pregnant with A., attributing her positive test for marijuana metabolites to being in the presence of others using marijuana. (Id. at pp. 825-826.) Prior to the children's removal, she safely parented David for the two years he was in her care. During the four and a half months between the detention and jurisdictional hearings, she tested negative for drugs 18 times and all of her missed tests were excused. (Id. at p. 830.) The appellate court reversed, explaining that the evidence of mother's substance abuse was never tied to any actual harm to the children or to a substantial risk of serious harm. (Id. at p. 829.) The court noted that, although it was possible to identify "many possible harms that could come to pass" from the mother's condition, the record lacked "any evidence of a specific, defined risk of harm." (Id. at p. 830.) The court also found the social services agency failed to investigate or produce any current evidence to support its allegations, instead relying on information the agency gathered three years earlier. At the jurisdictional hearing, a social worker admitted she did not conduct an "independent investigation" in support of the petition. (Id. at p. 831.)
Here, the record contains evidence of a substantial risk of harm. Mother's methamphetamine abuse continued unabated for the three years between the older children's removal in 2016 until J.S.'s removal in 2019. At no time did she seek substance abuse treatment. Further, unlike the mother in David M., mother only tested six times between the detention and jurisdictional hearings, testing positive for opiates on March 6, 2019 and creatinine on March 21. The court accepted her explanation for the positive result for opiates but no evidence was offered to explain the presence of creatinine. Finally, unlike the mother in David M., this mother cannot argue she successfully parented other children prior to these proceedings. Her children were removed from her and placed with their respective fathers and grandparents because of mother's unwillingness to treat her drug problem. As the juvenile court rightly pointed out, J.S. is a young child and needed the court's protection. As is often stated, the juvenile court "need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child." (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216.)
We find no error.
DISPOSITION
The juvenile court's jurisdictional finding is affirmed.