Opinion
B300113
04-20-2020
In re I.C., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. N.P., Defendant and Appellant.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Sarah Vesecky, Senior 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP04603A) APPEAL from orders of the Superior Court of Los Angeles County, Stephen C. Marpet, Commissioner. Affirmed. Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Sarah Vesecky, Senior Deputy County Counsel, for Plaintiff and Respondent.
____________________
I. INTRODUCTION
N.P., mother of now 15-year-old I.C. (the child), appeals from the juvenile court's orders asserting jurisdiction over the child pursuant to Welfare and Institutions Code section 300, subdivision (b); removing the child from mother's custody; and requiring mother's visits with the child be monitored. We affirm.
All statutory references are to the Welfare and Institutions Code.
J.C., the child's father, and mother separated when the child was three to six months old. Father is not a party to this appeal.
II. BACKGROUND
A. Section 300 Petition
On July 22, 2019, the Los Angeles County Department of Children and Family Services (Department) filed a petition under section 300, subdivision (b)(1) that alleged, as sustained by the juvenile court, the following counts:
"b-1
"The child['s] . . . mother . . . has a history of substance abuse, and is a current abuser of alcohol, which renders the mother incapable of providing regular care for the child. On numerous prior occasions, the mother was under the influence of alcohol while the child was in the mother's care and supervision. The mother has a history of a criminal conviction of Driving Under the Influence of Alcohol. The mother's substance abuse endangers the child's physical health and safety, and places the child at risk of serious physical harm and damage.
"b-2
"The child['s] . . . mother . . . has mental and emotional problems, including diagnoses of Alcohol Abuse, Major Depressive Disorder, Generalized Anxiety Disorder and Moderate Panic Disorder, which render the mother unable to provide regular care of the child. The mother failed to take the mother's psychotropic medication as prescribed. Such mental and emotional condition on the part of the mother endangers the child's physical health and safety, and places the child at risk of serious physical harm and damage." B. Detention Report and Hearing
According to the Department's July 23, 2019, Detention Report, on May 25, 2019, it received a referral alleging general neglect by mother. The referral stated that mother had voluntarily enrolled in a detox program on May 22, 2019. During an assessment for that program, mother admitted that she had picked up the child from school numerous times while under the influence of alcohol.
Mother reported that she was unable to work or to provide for the child because she spent her days drinking alcohol. Mother drank daily and, since November 2018, she drank 750 milliliters of vodka a day. The child had asked mother to stop drinking. Mother attributed the increase in her alcohol consumption to being denied acceptance into nursing school and being unemployed.
Mother entered a detox program because she needed a change and did not like the direction her life was going. She was diagnosed with alcohol dependence disorder, major depressive disorder, panic disorder, and general anxiety disorder. Mother was seeing a psychiatrist, but stopped taking her two psychotropic medications two weeks prior without informing her psychiatrist.
On June 12, 2019, a social worker spoke with maternal grandmother, who reported that the child was staying with her, but was currently at father's home. Maternal grandmother said that mother was struggling, but had strong family support.
On June 24, 2019, the social worker met with maternal grandparents and the child. Maternal grandparents said they had hired mother to work at their business. Mother had worked there only a short time before other employees expressed concern to maternal grandmother about mother drinking at work.
Maternal grandmother was aware that mother was taking medication for depression and anxiety. Maternal grandmother had believed that mother's behavior was "off" and suggested that mother have her psychiatrist adjust her medications. Maternal grandmother advised mother that she should not drink while taking her medications. Mother said she intended to see her psychiatrist, she had only been drinking two to three weeks, and her psychiatrist did not recommend rehabilitation.
Just before mother entered her rehabilitation program, she called maternal grandmother and said she could not control her drinking and needed help. Maternal grandmother found a rehabilitation program for mother. Maternal grandmother said that the child did not talk to her about mother's alcohol abuse. If maternal grandmother raised the issue, the child was resentful.
Maternal grandmother reported that mother currently was taking one medication for depression and an anti-alcohol pill. Mother had a sponsor and was working on her steps. That week, mother earned her 30-day badge. Mother felt good and looked happy. According to maternal grandmother, the rehabilitation program "approve[d] in 9-10 day increments" and there was no plan for mother's discharge. Once discharged, mother would have intensive outpatient treatment.
Maternal grandmother explained that there was a custody order concerning the child. Mother had primary custody of the child, with the child staying with father every other weekend. While mother was in rehabilitation, the child was staying with maternal grandparents. The child continued to stay with father every other weekend. Father was aware of the "situation" and was supportive.
Maternal grandmother reported that the child attended school in South Pasadena. The child did well in school, earned good grades, and had made the freshman cheer team. She was a "terrific kid," "very grounded," and on the "straight and narrow path."
The social worker interviewed the child. The child said her family made her happy because they were supportive. She said she did not like that mother drank. Mother had been drinking heavily for a few years, but it got really bad about a year prior. Mother drank a bottle of vodka every day. Mother drank a shot of alcohol before driving the child to school. The child said that, to her knowledge, mother never drank so much that she was unable to drive.
When mother was under the influence, she "would act anti-social or have random bursts of love." The child stated that mother never made her feel unsafe, called her names, or embarrassed her. She was able to have friends over without being embarrassed—if she told mother in advance, mother would not drink.
The child reported that mother vomited daily. The child tried to avoid going home until 5:00 p.m., instead going to a friend's house or the park. She visited father every other weekend and felt safe with him.
On July 8, 2019, the social worker spoke with mother's therapist at Akua Mind and Body. The therapist reported mother was transitioning from the residential program to an intensive outpatient/sober living program. In that program, mother would participate in group sessions three hours a day, Monday through Friday. After the group sessions, mother would receive two hours of "personal development." In the evenings, mother would attend AA meetings. According to the therapist, mother was compliant, making good progress, and focused and involved in her AA program.
On July 11, 2019, the social worker interviewed mother at her rehabilitation program. Mother was not currently working. She had been employed as a server, but was injured at work and could no longer work as a server.
Mother described the child as "the best kid ever." The child was loving and thoughtful. She and mother had a good relationship—she told mother everything. The child earned straight As through middle school.
Mother told the social worker that she had entered a rehabilitation program because she was drinking a bottle of vodka a day. She started drinking in the morning after dropping off the child at school. She would then sleep, pick up the child, and continue drinking. Mother denied drinking and driving with the child. Mother had been drinking like this for six months. Her drinking began after she was rejected by all the nursing programs to which she had applied. Mother admitted she drank while employed by maternal grandmother, but described her drinking as "not much."
Mother reported that prior to entering detox, a psychiatric nurse practitioner diagnosed her with depression and anxiety for which mother had been taking two medications. After entering detox, mother's medications were changed. Her new medications were working for her and she felt good.
Mother said the rehabilitation program was helping—everyone at the program was helpful and supportive. Being in the rehabilitation program allowed mother to focus on herself and she was doing "good work." Mother was participating in group sessions daily, she was seeing a therapist once a week, and had seen a psychiatrist twice.
After her discharge from the rehabilitation program, mother planned to return home, get a job, rent an apartment, and live with her daughter. She would attend AA meetings, resume her psychiatric treatment, surround herself with positive influences, not isolate herself, and not associate with drinkers. The social worker advised mother to arrange for her aftercare treatment before leaving the rehabilitation program, stating her concern that mother would revert to her old habits once she was without the program's support. Mother stated that maternal grandmother was her support.
Mother "self-reported a DUI" 12 years earlier, but said the District Attorney dropped the charges.
On July 15, 2019, the social worker spoke with father. He stated the child was living with maternal grandmother while mother was in her rehabilitation program. Father was willing and able to care for the child, but recognized that the child's life was established in South Pasadena—she had friends there and had just made the cheer team.
Father was aware that mother was in a rehabilitation program, but was not aware of the extent of her problem. Recently, mother's conduct had caused father to be suspicious, but when he asked the child about it, she was vague.
Father stated that mother was unable to attend the child's graduation from the eighth grade because she was in her rehabilitation program. Father asked the child how she felt about mother's absence. The child responded, "[A]s long as she doesn't show up drunk."
On July 19, 2019, the social worker received a fax from mother's therapist at Akua Mind and Body. The therapist stated that mother had received residential drug and alcohol treatment, dual diagnosis treatment, and intensive outpatient dual diagnosis treatment. Mother received her intensive outpatient dual diagnosis treatment three hours a day, five days a week. Mother was diagnosed with major depressive disorder, moderate panic disorder, and generalized anxiety disorder. Mother was prescribed medication. She was compliant with the treatment program and had been sober for 58 days. Mother's projected discharge date was August 2, 2019. The therapist reported that mother had made significant progress in treatment and AA and recommended that mother continue with outpatient therapy weekly.
At the July 23, 2019, detention hearing, the juvenile court found a prima facie case for detaining the child. It released the child to father and granted mother unmonitored day visits. Mother was not to drive the child. C. Jurisdiction Report, Last Minute Information for the Court, and Jurisdiction/Disposition Hearing
According to the Department's August 13, 2019, Jurisdiction Report, mother had a misdemeanor conviction for driving under the influence of alcohol in 2007. She was sentenced to probation for three years. In 2009, mother may have been convicted of misdemeanor driving without a license. In 2010, she was arrested for intoxication.
On August 8, 2019, a dependency investigator interviewed mother. As to the count concerning mother's alleged alcohol abuse, mother denied having a history of abuse stating, "It was a short period of time. It was 8 months back." Mother said her substance abuse was triggered by her inability to return to work as a server due to a workplace injury and to receipt of a few rejections from nursing schools.
Mother said she entered a treatment program on her own, she was not currently abusing alcohol, and she had been sober for 78 days. She admitted that she drank alcohol at home, but denied driving the child after drinking. She stated that she had always been able to provide for the child's needs. Mother reported that she and father used marijuana in the past. She denied any other drug use. She further denied drinking to the point of passing out or that she was ever incapacitated and unable to care for the child.
As to the count concerning mother's mental health, mother acknowledged being diagnosed with mental health disorders. Mother said, however, "At no point did my diagnosis impede my ability to provide for [the child] or to participate in daily life."
Mother stated, "All of this is focused on the problem. I'd like to have more focus on the future. I plan on continuing to do [sic] and I will follow through. If I feel the need to stop taking my medication, I will discuss with my psychiatrist before doing it." Mother believed it would be disruptive for the child to live with father. Mother noted that the child had lived her whole life in South Pasadena, she had a group of friends, and she would attend a better high school if she stayed in South Pasadena and not with father. The child also had been accepted for honors classes at South Pasadena High School and had made the cheer team.
On August 9, 2019, the dependency investigator interviewed father. Father stated that he had been involved in the child's life since her birth. He had an amicable relationship with mother and maternal grandmother.
Father did not believe a zip code should determine what was best for the child. He noted that the child had not yet started at South Pasadena High School, so if she were to live with him, it would not interrupt her education. He had enrolled the child in his local high school. He also had contacted South Pasadena High School and the cheer team about the child's possible attendance—he did not want the child's life to be "impacted" and for the child not to have the opportunity to participate on the cheer team.
In an August 8, 2019, letter verifying that mother was in a residential treatment program, mother's case manager reported that mother was "currently at an intensive level of care." As part of mother's treatment program, she daily participated in eight hours of group counseling and individual therapy and a 12-step recovery meeting. The manager stated that mother had "made great progress towards her treatment goals, accepting her struggles with substance abuse, therapeutically addressing issues that underlie her substance abuse behaviors, and developing coping skills to maintain sobriety." As part of her aftercare plan, mother had been advised to seek individual therapy and to continue attending 12-step recovery meetings daily.
In an email dated August 8, 2019, mother's case manager reported that mother had passed random urinalysis tests two times a week and blood alcohol concentration tests five times a week.
In the Department's August 13, 2019, Last Minute Information for the Court, the dependency investigator reported about interviews with the child and father. The child denied that mother had ever been unable to provide for her. She said, "If I ever needed her, she was always there. I felt safe with her." Mother provided her with food, did her laundry, and took her to school and other activities such as cheer practice. The child denied that mother was under the influence of alcohol when she took her places.
When asked about mother consuming alcohol before taking her to school, the child responded, "I didn't see most of the time." She had seen a bottle of vodka in the freezer. The child never saw mother unable to stand upright or stumbling from her drinking. She also denied that she ever had to call someone or question mother about her drinking. The child did not feel threatened, afraid, or unsafe due to mother's drinking. She acknowledged that she had been in mother's care while mother was under the influence of alcohol. The child denied that mother had placed her in endangering situations stating, "I don't necessarily think I was at risk. She was not drunk to the point of passing out."
The child told the dependency investigator that she preferred to remain in mother's custody. If that meant living with maternal grandparents until mother was ready, she was willing to do so. The child knew father wanted her to live with him, but did not believe he had considered that she had lived her entire life in Pasadena and what she would be leaving behind. She was part of the cheer team and had enrolled in a program at school that would further her interest in becoming a surgeon.
The child was unaware of mother's mental health diagnoses. Mother once told her she felt anxious, but the anxiety subsided. The child did not believe that mother's diagnoses rendered mother unable to care for her.
Father told the dependency investigator that he had enrolled the child in his local school district—the high school was ranked "9 out of 10," but had also communicated with South Pasadena High School. If the child was to live with maternal grandparents, father was concerned about her afterschool supervision. Maternal grandmother did not leave work until about 6:00 p.m. which would leave the child "to be out with friends."
Father said that mother was loving towards the child. Also, mother was "extremely supported by her parents, who [were] financially able to support her." Father described himself as a dedicated father. He had been married for 10 years and had a "solid home." He earned a six-figure income and he and his family lived in a five-bedroom, three-story home.
The Department further informed the juvenile court that mother had been discharged from her rehabilitation program on August 9, 2019.
At the August 13, 2019, jurisdiction/disposition hearing, the juvenile court sustained the petition as pleaded. It found that mother was a long-time alcohol abuser who had driven the child to school while intoxicated. The juvenile court commended mother for having voluntarily entered and completed a rehabilitation program, stating that mother was "getting on the right road to recovery to getting her child back to her care." It noted, however, that mother's recent sobriety was due to her having been "locked up essentially for 90 days" in a residential treatment program, away from the temptations to use alcohol.
As for disposition, mother requested the juvenile court release the child to her, with the appropriate plan of the child staying with maternal grandparents. That plan would allow the child to attend South Pasadena High School as she wished. The juvenile court found, by clear and convincing evidence, that there was a substantial danger to the child's physical and mental well-being if it did not remove her from mother and there were no reasonable means to protect the child without removal.
The juvenile court ordered mother to participate in services including a drug program consisting of a six-month inpatient program and six months of aftercare—the juvenile court acknowledged that mother had spent three months in an inpatient program and allowed her to complete the remaining nine months on an outpatient basis. The juvenile court also granted mother monitored visits with the child—two hours twice a week minimum. Mother's counsel noted that mother currently was permitted unmonitored visits. The juvenile court stated that the visits would be monitored, but set a hearing in 60 days to determine if mother's visits should be liberalized.
III. DISCUSSION
A. Standard of Review
"'In reviewing the jurisdictional findings and the disposition, 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 the findings and orders 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.' [Citations.]" (In re R.T. (2017) 3 Cal.5th 622, 633.) B. Jurisdictional Order
Some appellate courts have reviewed visitation dispositional orders for substantial evidence, others have reviewed for an abuse of discretion, and still others have blended the substantial evidence and abuse of discretion standards of review. (See In re T.M. (2016) 4 Cal.App.5th 1214, 1219 [summarizing these different authorities].) Our resolution of mother's challenge to the visitation order would remain the same under any of these standards of review.
A child comes within the juvenile court's jurisdiction under section 300, subdivision (b)(1) when "[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 . . . or by the inability of the parent . . . to provide regular care for the child due to the parent's . . . mental illness . . . or substance abuse." "The juvenile court need not wait until a child is seriously injured to assume jurisdiction if there is evidence that the child is at risk of future harm from the parent's negligent conduct. [Citation.]" (In re Yolanda L. (2017) 7 Cal.App.5th 987, 993.)
Mother argues that at the time of the jurisdiction hearing on August 13, 2019, the child was not at risk due to mother's alcohol abuse and mental health issues. Mother states that she voluntarily admitted herself into a detox program; on August 2, 2019, she completed a six-week alcohol abuse program; she arranged for an aftercare program with therapy and AA meetings; and she arranged for the child to live with maternal grandparents during mother's ongoing treatment.
Mother further states that the child was well cared for by mother and felt safe with mother. The child had lived in the Pasadena area her whole life. She would be starting highly ranked South Pasadena High School as a freshman two days after the jurisdiction hearing. The child was a straight A student, had been placed in honors classes at the high school, and had made the cheerleading team. Maternal grandparents, with whom the child could live during mother's treatment, lived in La Cañada, which was close to South Pasadena High School. Mother's plan to have the child live with her maternal grandparents so that the child could "remain in her community with security and continuity, school, friends, family" posed no risk to the child.
Evidence of mother's alcohol abuse was sufficient to establish jurisdiction. Mother had been drinking heavily for a few years. Mother admitted that she was unable to work or provide for the child because she spent her day drinking. By her own admission, she drank daily and, since November 2018, drank 750 milliliters of vodka a day. Mother vomited daily. Mother's drinking had a sufficiently negative impact on the child that the child avoided coming home from school until 5:00 p.m., staying at a friend's house or going to the park instead. Mother drank a shot of alcohol before driving the child to school.
Because we hold that evidence of mother's alcohol abuse was sufficient to establish jurisdiction, we need not address whether evidence of her mental health issues also was sufficient to establish jurisdiction. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451 ["When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence. [Citations.]"].)
At the same time, mother's commendable sobriety was relatively brief. She entered the rehabilitation program on May 22, 2019, and was released on August 9, 2019. As of the August 13, 2019, jurisdiction/disposition hearing mother had been sober for, at most, less than three months. Given the length and severity of mother's alcohol abuse compared to her short-lived sobriety, sufficient evidence supported the juvenile court's jurisdictional finding. C. Dispositional Orders
1. Removal Order
A juvenile court may not take a dependent child from the physical custody of her parent unless it finds clear and convincing evidence of, among other circumstances: "There 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).)
Mother contends the juvenile court had alternatives to removal. The child could have lived safely with mother, mother argues, because mother planned to have the child live with maternal grandparents. She argues there could have been safeguards in place such as in-home support services, unannounced home visits, and random testing.
The evidence justifying jurisdiction discussed above also was sufficient to justify removing the child from mother. Mother's long-term and recently severe alcohol abuse and short-term sobriety posed a substantial danger to the child if she were returned home. Mother's plan to have the child live with the maternal grandparents was not a means by which to protect the child's physical health without removing her from mother's physical custody. Instead, it was just the opposite, it was a plan to protect the child's physical health by removing her from mother's physical custody. Implicit in that proposed plan is the acknowledgment that mother was not yet ready to safely have physical custody of the child.
Mother's failure to object in the juvenile court to any deficiency in the Department's discussion of, or to the juvenile court's ruling on, the reasonableness of the Department's efforts to prevent the child's removal from mother's physical custody forfeited the issue on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293 ["a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been made but was not made in the trial court"]; In re Desiree M. (2010) 181 Cal.App.4th 329, 334 ["If [the mother] had brought this matter to the attention of the juvenile court, the court could have remedied any error"].)
2. Visitation Order
At the July 23, 2019, detention hearing, the juvenile court (the Honorable Pete R. Navarro) granted mother unmonitored day visits. At the August 13, 2019, jurisdiction/disposition hearing, the court (the Honorable Stephen C. Marpet) granted mother monitored visits for a minimum of two hours twice a week. Counsel for mother and the child requested unmonitored visits. Mother contends that Commissioner Marpet's order did not meet section 362.1, subdivision (a)(1)(A)'s mandate that "[v]isitation shall be as frequent as possible, consistent with the well-being of the child," or the purpose of the juvenile court law expressed in section 202, subdivision (a) to "preserve and strengthen the minor's family ties."
As of the jurisdiction/disposition hearing, there had been no visits. According to mother's counsel, mother was unable to visit the child due to the distance between her and father's residences and her concentration on her rehabilitation program.
The juvenile court's order for monitored visits reflected its concern about the severity and recency of mother's alcohol abuse. At the same time, it set the matter for a return hearing in 60 days to consider liberalizing mother's visits. Mother does not explain how she was aggrieved by the court's order granting her two-hour visits twice a week as the juvenile court set a minimum and not a maximum for the duration and frequency of mother's visits. The juvenile court did not err.
IV. DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J. We concur:
RUBIN, P. J.
BAKER, J.