Opinion
B297510
02-24-2020
In re STAR K., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. SHANNON K., 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, and Brian Mahler, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CCJP08194) APPEAL from an order of the Superior Court of Los Angeles County, Kim L. Nguyen, Judge. 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, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
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Shannon K. (Mother) challenges the jurisdictional findings and dispositional order declaring 15-month-old Star a dependent of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivision (b)(1), and removing her from Mother's physical custody. Mother contends there is insufficient evidence to support the juvenile court's findings she and Shane W. (Father) were substance abusers, Star was at substantial risk of serious physical harm, and there were no other reasonable means to protect Star without removing her from Mother's care. We affirm.
Further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
A. The Referral and Investigation
On November 29, 2018 the Los Angeles County Department of Children and Family Services (Department) received a referral alleging Mother and Father were living in a small hotel room with Star, were using methamphetamine, and had committed domestic violence against each other in Star's presence. Social worker Vanessa Herrera went to the hotel room, where she interviewed Father. Father reported that Mother had just left with Star, but she left Star's car seat in the hotel room. Herrera observed the room smelled of cigarette smoke and had a large number of empty alcohol bottles. Father stated he and Mother recently had a verbal altercation in the hotel room and Mother had thrown his cell phone at him, breaking the phone. Father confirmed Star was present during the fight, stating, "[T]he baby is usually right here in the room on the bed when we're fighting." But Father denied he or Mother acted physically toward each other.
When Herrera asked Father about the parents' use of methamphetamine, Father initially denied his use of methamphetamine, stating he only used marijuana. But then he stated, "[L]ook[,] ok, I do dope and marijuana." He added he had used "dope" in the bathroom the prior evening. Father stated he smoked marijuana on the hotel room's patio. He also admitted the prior night he drank a bottle of vodka. When Herrera asked about Mother using drugs, Father responded, "I've said too much already and I shouldn't be saying anything that's going to get us in trouble." But when asked a second time, Father stated Mother also used "dope." He explained, "When I'm in the bathroom, she's with the baby on the bed. I clean the bathroom, come out, and she'll go in there [and] do her thing and I'll watch the baby." Herrera also spoke with the hotel manager, who stated, "[T]hey're always fighting in that room. We always hear them arguing and the lady always has the baby with her."
Herrera and another social worker returned to the hotel room the next day. They heard movement inside the room, but no one answered the door when they knocked. After two police officers gained access to the room through a patio door, the social workers entered as well. Mother, Father, and Star were on the patio. Herrera interviewed Mother, who stated she was homeless and Father had left her and Star alone for three weeks. Mother denied drug use, saying she had "been clean for about two years." She reported Father only used marijuana. Mother was willing to take a drug test. As to Father's statement they switched off using drugs in the bathroom, Mother responded, "[T]hat's not true." One of the police officers asked Mother about the smell of cigarette smoke, noting "it smells like a casino in here." Mother responded she and Father smoked outside on the patio. As to the domestic violence, Mother said, "[W]e do yell and get loud." But she added, "[H]e's never touched me." She likewise denied ever physically touching Father. Star had no visible marks or bruises, and the social worker observed Star was bonded with Mother. Herrera provided her business card to Mother and stressed the importance of keeping in contact to inform Herrera of Mother's and Star's whereabouts.
The police officers also interviewed Mother and Father. According to the incident report, they observed Star was clean, "happy and healthy," with no visible marks, bruises or injuries. The officers concluded based on their investigation on November 30, 2018 the child abuse allegations were unfounded.
Later on November 30 Herrera contacted Mother to make arrangements for a drug test. Mother refused to take a drug test, stating her attorney told her she did not need to take the test.
On December 3, 2018 Herrera spoke with a "housing navigator," Melissa Bergstrom, who had been working with Mother and Father to arrange housing. When Bergstrom first met Father in August 2018, Father was initially dressed well, but later in the afternoon he returned appearing disheveled and under the influence. Father told Bergstrom he and Mother were fighting, and they were throwing and breaking things in front of the baby. Father said Mother was using methamphetamine, but added, "I don't want to reveal too much info. I don't want Star taken away from us." The next day Bergstrom told Herrera that the hotel manager called to say Mother and Father had destroyed the room and broken the television after the manager asked them to leave. The hotel manager provided a photograph of the broken television.
After several failed attempts to contact Mother, on December 12 Mother called Herrera, and they spoke later that day. Mother indicated she was staying in a shelter in Covina with Star and attending the Prototypes program for mental health counseling. However, when Herrera went to the shelter, she was told Mother and Star had not been there, and the shelter did not accept parents with children. Mother also did not show up to her Prototypes appointment on December 14. That day Herrera made an unannounced visit to the maternal grandparents' home and rang the doorbell multiple times. Herrera heard a baby laughing, then someone said, "[S]hh, be quiet." No one answered the door. Other attempts by Herrera to contact Mother also failed. Then, on December 17 Mother contacted Herrera to say she and Star were staying with the maternal grandparents. Herrera was unable to locate Father. B. The Petition and Detention
On December 26, 2018 the Department filed a petition on behalf of Star pursuant to section 300, subdivision (b)(1). The petition alleged Father was a current abuser of methamphetamine and marijuana (count b-1) and Mother was a current abuser of illicit drugs including methamphetamine (count b-2), which rendered both parents incapable of providing regular care and supervision of Star and placed Star at risk of serious physical harm. Count b-1 also alleged Mother's failure to protect Star from Father's substance abuse by allowing Father in the home with access to Star. Both counts alleged Star was at such a young age that she needed regular care and supervision.
Mother appeared at the detention hearing on December 27, 2018. Star was detained from Mother and Father and placed in foster care. The court ordered monitored visitation for Mother with on-demand drug testing. C. Reports to the Court
As of the January 18, 2019 jurisdiction and disposition report, Mother was living with the maternal grandparents; Father's whereabouts were still unknown. Star's foster parent reported Mother engaged appropriately with Star during her visits. However, on December 28, 2018 Mother tested positive for methamphetamine, with levels at 2,216 nanograms per milliliter. Mother admitted she used methamphetamine on that date but denied she had used it at any other time in the prior three years. She claimed she was so "hopeless" at having Star taken away, she used drugs on that one day. Mother explained that a stranger had offered her "free" methamphetamine, and she had purchased "a little" as well. On January 14, 2019 Mother again tested positive for methamphetamine with levels at 4,027 nanograms per milliliter and amphetamine at 513 nanograms per milliliter. This time when the social worker asked about the positive test, Mother denied using methamphetamine. The last minute information for the court also noted Mother had posted on social media that Herrera (by name) had kidnapped Star. D. The Jurisdiction and Disposition Hearing
At the February 8, 2019 combined jurisdiction and disposition hearing, as to Father's drug use (count b-1), minor's counsel pointed to Father's admission he used drugs in the bathroom while Mother watched Star, then they switched places and Mother used drugs in the bathroom. As to Mother's drug use (count b-2), minor's counsel pointed to Father's statements of Mother's drug use, and Mother's two positive drug tests. Further, as to the second positive test, Mother denied drug use. The Department joined in these arguments and added there was evidence of domestic violence, including the hotel manager's statements that Mother and Father were constantly fighting and that Mother always had Star with her.
Mother's attorney argued the first drug test was "inconclusive" and, as to the second drug test, Mother "tested positive because she had used Sudafed." The attorney argued Sudafed has amphetamine, the same ingredient as methamphetamine. However, Mother's attorney did not present any evidence Mother had taken Sudafed or that taking it would result in a positive test for methamphetamine. Mother's attorney also noted the incident report from the police officer who was at the hotel room on November 30, 2018 stated Star "was clean and appeared happy and healthy," and concluded based on the officer's investigation the allegations of child abuse were unfounded. Mother's attorney requested Star be returned to Mother's custody.
Mother's attorney did not present any argument as to why the positive drug test showing methamphetamine at 2,216 nanograms per milliliter was inconclusive.
The juvenile court sustained the allegations in counts b-1 and b-2 of the petition and declared Star a dependent of the court under section 300, subdivision (b)(1). The court found the statements by Father to Herrera that he and Mother used drugs to be "highly credible" in light of Father's reluctance to get himself and Mother into trouble. The court also found "ongoing volatility" between Mother and Father and that during their arguments they threw things. As to Mother's drug use, the court found Father's statements as to Mother using drugs credible and, as to Mother's two positive drug tests, "the court simply does not find it credible that either or both tests were as a result of the use of Sudafed." The court concluded, "[T]here's a nexus between methamphetamine use here, [and] risk of serious physical harm. Not only is this a child of tender years with parents using while taking care of her, but also the use itself brings about volatility and violence that places the child at risk of serious physical harm."
The court removed Star from Mother's and Father's care, finding "by clear and convincing evidence [there is a] substantial risk of detriment if left in the care and custody of the parents today." The court ordered placement of Star in foster care, with assessment of the maternal grandparents for future placement. The court also ordered reunification services for Mother with monitored visits for a minimum of two times a week for two hours each visit. The court ordered Mother to complete a drug treatment program with aftercare, parenting classes, and individual counseling to address case issues, and to submit to weekly random and on-demand drug testing. Mother timely appealed from the jurisdictional findings and dispositional order.
DISCUSSION
A. Standard of Review
We review the juvenile court's jurisdictional findings and dispositional order for substantial evidence in light of the whole record. (In re R.T. (2017) 3 Cal.5th 622, 633 ["'In reviewing the jurisdictional findings and disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them.'"]; In re Yolanda L. (2017) 7 Cal.App.5th 987, 992 ["On appeal, we review both the jurisdictional and dispositional orders for substantial evidence."].) Substantial evidence is evidence which is reasonable, credible, and of solid value. (In re I.C. (2018) 4 Cal.5th 869, 892; In re D.B. (2018) 26 Cal.App.5th 320, 328.) We draw all reasonable inferences from the evidence to support the findings and orders of the juvenile court, and we adhere to the principle that issues of fact and credibility are the province of the juvenile court. (In re R.T., at p. 633; In re I.J. (2013) 56 Cal.4th 766, 773.) "The appellant has the burden to demonstrate there is no evidence of a sufficiently substantial nature to support the findings or orders." (In re D.B., at pp. 328-329; accord, In re Travis C. (2017) 13 Cal.App.5th 1219, 1225.) B. Substantial Evidence Supports the Jurisdictional Finding Under Section 300 , Subdivision (b)
The juvenile court has jurisdiction over a child if the Department establishes by a preponderance of the evidence that allegations made pursuant to section 300 are true. (§ 355, subd. (a); In re I.J., supra, 56 Cal.4th at p. 773.) Section 300, subdivision (b), authorizes a juvenile court to exercise dependency jurisdiction over a child 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 . . . or by the inability of the parent . . . to provide regular care for the child due to the parent's . . . substance abuse." The Legislature has declared as to substance abuse: "The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child." (§ 300.2.)
"The 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 N.M. (2011) 197 Cal.App.4th 159, 165; accord, In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383.) Further, exercise of jurisdiction under section 300, subdivision (b), is appropriate "when a child is 'of such tender years that the absence of adequate supervision and care poses an inherent risk to [his or her] health and safety.'" (In re Kadence P., at p. 1384 [mother's drug use rendered her incapable of providing regular care for infant child of tender years, placing infant at substantial risk of harm]; accord, In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216 [father's chronic use of marijuana was sufficient to support jurisdiction over three-month-old infant by showing inability to provide regular care for infant]; In re Drake M. (2012) 211 Cal.App.4th 754, 767 [Department failed to make showing the father was a substance abuser, which would have been prima facie evidence of inability to care for 14-month-old child].)
Mother concedes Star was a child of "tender years," but she contends there was insufficient evidence she was a substance abuser or that she could not provide regular care for Star. Mother's contentions lack merit. The juvenile court found Father's statements credible that he and Mother used drugs and, specifically, that he and Mother took turns using drugs in the bathroom while the other watched Star. Mother argues the juvenile court had no basis for making this credibility finding because Father did not testify. But the court appropriately considered that Father's statements were against his and Mother's interests because they supported Star's removal from the parents' physical custody. The court also focused on "ongoing volatility" between the parents and the nexus with methamphetamine use, which "itself brings about volatility and violence that places the child at risk of serious physical harm."
Mother also contends there was insufficient evidence to support the juvenile court's jurisdictional finding based on the allegation in count b-1 that Mother failed to protect Star from Father's substance abuse. Because we conclude substantial evidence supports the juvenile court's jurisdictional findings based on the allegation in count b-2 that Mother endangered Star by her own substance abuse, we do not reach whether the evidence also supports the court's jurisdictional findings based on Father's substance abuse. (In re I.J., supra, 56 Cal.4th at p. 773 ["'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.'"]; accord, In re Francisco D. (2014) 230 Cal.App.4th 73, 80.)
The juvenile court also relied on Mother's two subsequent positive drug tests prior to the jurisdiction hearing. Mother points to her attorney's argument that the tests reflected Mother taking Sudafed, but Mother admitted to using methamphetamine on December 28, 2018, and there was no evidence in the record to support her attorney's assertion Mother had taken Sudafed on the day of the January 14, 2019 test. The fact Mother denied taking methamphetamine on January 14 further supports the court's jurisdictional findings by showing Mother's minimization of her drug use. (See In re Kadence P., supra, 241 Cal.App.4th at p. 1384 [considering "ample evidence [the mother] was hiding her current drug use"].)
Mother also argues the fact Star was not injured or displaying signs of neglect shows a lack of evidence Star was at a substantial risk of serious harm. However, Mother's continuing substance abuse was sufficient to support jurisdiction without waiting for Star to be harmed, especially given that she was a child of tender years (15 months old). (In re Kadence P., supra, 241 Cal.App.4th at p. 1383; In re N.M., supra, 197 Cal.App.4th at p. 165.) C. Substantial Evidence Supports the Dispositional Order Removing Star from Mother's Care
Section 361, subdivision (c), provides a child "shall not be taken from the physical custody of his or her parents, . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances . . . . [¶] (1) 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." "The parent need not be dangerous and the child need not have been actually harmed before removal is appropriate." (In re R.V. (2012) 208 Cal.App.4th 837, 849; accord, In re A.S. (2011) 202 Cal.App.4th 237, 247.)
Mother challenges the dispositional order removing Star from her physical custody on the same grounds as the jurisdictional findings—that Mother was not a substance abuser and Star was doing well in her care. But, as discussed, there was substantial evidence Mother was a substance abuser, including her use in November and December 2018 and her ingesting methamphetamine only three weeks before the jurisdiction and disposition hearing.
Mother also contends Star could have been protected by having Star live with Mother at the maternal grandparents' home with in-home support services, unannounced home visits, and random drug testing for Mother. But given Mother's continued substance abuse, Star's inability at 15 months to care for herself, and the complicity of the maternal grandparents in avoiding the Department (as shown by the December 12, 2018 unannounced visit by Herrera when no one answered the door, but there were sounds of a baby laughing and an adult telling her to be quiet), substantial evidence supported the juvenile court's finding by clear and convincing evidence that removal of Star from Mother's custody was necessary to protect Star from substantial risk of harm.
In re L.C. (2019) 38 Cal.App.5th 646 and In re Henry V. (2004) 119 Cal.App.4th 522, 529, relied on by Mother, are distinguishable. In In re L.C., the six-year-old child's legal guardian tested positive for methamphetamine two times, but then tested negative during the following two months before the jurisdiction hearing. (In re L.C., at p. 649.) At the jurisdiction hearing the legal guardian admitted he had smoked methamphetamine, but he testified he stayed in a hotel on those nights, had arranged for the child's care, enrolled in a drug awareness class, did not have cravings for methamphetamine, and did not use methamphetamine after the last positive test. (Id. at p. 650.) On these facts, the Court of Appeal concluded the legal guardian had not abused methamphetamine and there was not substantial evidence the child was at substantial risk of physical harm. (Id. at p. 653.) By contrast, Mother had used methamphetamine while Star was in the hotel room, tested positive for methamphetamine just weeks before the hearing, denied her recent use of methamphetamine, and had not enrolled in a drug program.
In In re Henry V., the Court of Appeal reversed the juvenile court's finding the four-year-old child should be removed from his mother's custody based on a single incident of the child being burned on his buttocks. (In re Henry V., supra, 119 Cal.App.4th at pp. 525-526.) On appeal, the court noted the juvenile court was not aware it must make its dispositional findings by clear and convincing evidence. (Id. at p. 530.) Further, the record contained "ample evidence" appropriate services could be provided to the mother to prevent further physical abuse following the single incident. (Id. at p. 529.) Here, the juvenile court made its findings by clear and convincing evidence, and there was evidence Mother had used methamphetamines in November 2018, and again in the month before the hearing.
DISPOSITION
We affirm the jurisdictional findings and dispositional order.
FEUER, J. We concur:
ZELON, Acting P. J.
SEGAL, J.