Opinion
B299241
03-09-2020
In re WILLIAM W., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. TONYA B., Defendant and Appellant.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CCJP02965) APPEAL from orders of the Superior Court of Los Angeles County, Lisa A. Brackelmanns, Commissioner. Reversed in part and affirmed in part. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
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Tonya B. (Mother) appeals the juvenile court's finding that her son, William, age 14, was a person described by Welfare and Institutions Code section 300, subdivision (b)(1) based on allegations that Mother failed to protect William from his father's illicit drug use. Mother contends insufficient evidence supported the court's jurisdictional finding as against her and, consequently, that the jurisdictional order as to her and related dispositional orders requiring her to participate in a parenting program and individual counseling should be reversed. We agree, in part, reverse the court's jurisdictional order as to Mother, reverse the dispositional order as to her for parenting only, and affirm in all other respects.
All subsequent statutory references are to the Welfare and Institutions Code.
Alternatively, Mother contends "if this Court finds substantial evidence supports the [juvenile] court's jurisdictional findings . . . this Court [should] strike the dispositional order requiring her to complete parenting courses as part of her family maintenance plan."
FACTUAL AND PROCEDURAL HISTORY
Mother and William's father, Harlan W. (Father), have been together for over 30 years. They have two children. William lives in his parents' two-bedroom apartment and attends middle school.
On the evening of February 11, 2019, Mother and Father engaged in a verbal argument that became physical. After police responded, Father was arrested and charged with domestic violence and possession of methamphetamine (which police found on Father). William was not harmed during the incident and remained with Mother after Father was arrested. The following day Father was released from custody and he returned to the family apartment.
The Los Angeles County Department of Children and Family Services (DCFS) received a referral concerning the incident. Mother and Father had no prior DCFS case history and no history of domestic violence. There was no criminal record for Mother.
On February 24, 2019, a social worker interviewed Mother, Father, and William at the family's apartment. The social worker noted the home was tidy and free of safety hazards, with no visible drug paraphernalia or alcohol. William was dressed and groomed appropriately and free of concerning marks or bruises. During a private interview, William told the social worker he was well cared for and not afraid of his parents. He never saw drugs or alcohol in the home, never saw his father using drugs, never saw Father or Mother under the influence of anything, and never saw drastic mood changes in either parent. William said his parents did not usually argue and had never been physical prior to the February 11 incident. When he was in trouble, his parents would speak sternly to him. The last time they used physical punishment was a few years before when he was hit on his upper thigh area with an open hand, leaving no marks or bruises nor causing any real pain.
Mother told the social worker the last few weeks had been especially difficult for her. The day after the February 11 incident Mother traveled to Tennessee to say goodbye to her own mother shortly before she passed away. She returned home a few days before the interview and was preparing for her mother's funeral. She was referred to counselors by her doctor and debated whether to go. She had been seriously ill for many years. Father was her primary caretaker, taking her to all of her medical appointments. Mother said she just learned about Father's methamphetamine use when Father was arrested. She stated she had never seen Father "under the influence of any kind," and he had always been on top of his caretaking responsibilities. She denied any previous domestic violence between her and Father and said they only occasionally verbally argued. She said William was in accelerated classes and had a good reputation at his middle school. He was current on his immunizations and physicals, and took medication as needed for asthma.
Six years earlier Mother was diagnosed with end state renal disease. She also had colon cancer and heart failure. She went to dialysis three times a week.
During his private interview, Father stated he had been diagnosed with bipolar disorder in 2004 but took no medication nor received services for it. He admitted using methamphetamine on and off for about 10 years, and daily for the last year and a half, as a way to cope with "everything that was going on." Father said he concealed his drug use from Mother and William, and Mother did not know he was using. He denied using methamphetamine in the home or being high around his wife or child. He wanted to stop completely but was unable to do so on his own, and had been unable to find a suitable treatment center covered by insurance. He agreed to take a drug test, but noted that the test would probably be positive because he had just used methamphetamine the prior day. He denied any prior altercations with Mother and stated they had a good relationship.
During a March 20, 2019 telephone interview, the arresting officer from the February 11 incident told a social worker Father had been cooperative and admitted to police that he used methamphetamine. The officer did not recall the amount of methamphetamine Father possessed. The officer had no concerns that William was abused or neglected, but thought Father had "some issues." He said Mother seemed to be taking good care of her child. William was fearful of the police but seemed comfortable around Mother when she consoled him and told him things would be fine. During a March 22, 2019 telephone interview, an official with William's middle school said William was an active, honor-roll student with no behavioral issues and no documented concerns about his overall well-being.
During an April 2, 2019 home visit, William told the social worker Father and Mother still resided in the home. He said he never saw Father drink alcohol, use drugs, or get angry. His parents did not argue or fight after the February 11 incident and there were no problems at home at that time. Both his parents took good care of him. He also said he was not afraid of anyone and felt safe and happy at home.
In her private interview, Mother said Father still lived in the apartment even though she knew he continued to use methamphetamine. She and Father had many discussions about his drug use following the February 11 incident. Mother said she knew Father had a history with methamphetamine about six years ago, but she did not know he had started using again until recently. She said Father never used drugs in the home. He acted the same and talked the same, so she had no idea he was using. The social worker told Mother drug test results showed Father's methamphetamine levels were very high. Mother stated she was shocked because he displayed no signs of drug use. The social worker explained that the DCFS referral had been elevated to a formal case due to concerns about Father's drug use. Mother said she understood but, despite their efforts, the family had been unable to get Father appropriate treatment.
Father said he had nothing to hide and would like Mother to be present during his interview. He admitted having used methamphetamine on and off for about 10 years, but said his family had no idea until the police arrested him on February 11. He said his body had become used to the methamphetamine. When the social worker asked when he had last used drugs, he said "yesterday." The social worker expressed strong concern about Father's drug use and the high level of methamphetamine detected by his latest drug test. The social worker explained to both parents that he needed to be in treatment as soon as possible. Both parents agreed and stated that this is what they had been trying to do. Father agreed to submit to a drug test. The social worker noted in the detention report that during his interview Father sat still, was calm and coherent, made eye contact with the social worker, and displayed no signs of methamphetamine use (e.g., impulsive behavior, dilated pupils, aggression, agitation, or twitchiness).
On May 7, 2019, the juvenile court granted a DCFS application for authorization to remove William from Father and release him to Mother. That day the social worker called Mother and explained that the court had granted a removal warrant and William had been detained from Father. Mother said Father would leave the home. When the social worker delivered the removal order to the apartment, Mother said Father was not at home and he would not be staying there anymore. The social worker reiterated that William was officially detained from Father and could not have unsupervised contact with William. Mother said she understood and agreed that Father would have no contact with him.
On May 10, 2019, DCFS filed a petition pursuant to section 300, subdivisions (a) and (b)(1) alleging in counts a-1 and b-1 there was a substantial risk William would suffer serious physical harm inflicted non-accidentally by his parents and that the parents had failed adequately to protect William due to a violent altercation during the February 11 incident. The petition, as later amended, alleged in count b-2 there was a substantial risk William would suffer serious physical harm because Father was incapable of providing regular care and supervision of William due to his unresolved history of drug use and current use of methamphetamine and amphetamine, and because Mother knew of, but failed to protect William from Father's illicit drug use.
As sustained, the petition, amended by interlineation, provided: "b-2 [¶] The child['s] . . . father[], has an unresolved history of drug use and is a current user of methamphetamine and amphetamine which renders the father incapable of providing regular care and supervision of the child. At least on 2/23/19, 2/25/19, 4/1/19, [and] 4/22/19, the father was under the influence of illicit drugs while the child was in the father's care and supervision. The mother[] . . . knew of the father's illicit drug use and failed to protect the child. The father's illicit drug use and the mother's failure to protect the child endanger the child's physical health and safety and place the child at risk of serious physical harm."
On May 13, 2019, at the detention hearing the juvenile court detained William from Father and released him to Mother. The court granted Father monitored visits three times weekly with DCFS discretion to allow Mother to be the monitor, but prohibited visitation by anyone under the influence of alcohol or drugs.
On May 22, 2019, the social worker re-interviewed the family for the jurisdiction/disposition report. William stated, "When [DCFS] got involved, I found out about [Father] using drugs. I didn't know before." Mother told the social worker, "My husband has never used at home. He doesn't do that here." When asked how long Father had been abusing drugs, Mother said, "I don't know. I knew when we first started [together]. It was something I didn't agree with. We had separated. It was about seven years ago. It was a six-month separation. From what I saw, when we reconnected he wasn't using. I noticed November to February [2019] he was using. He is bipolar. I noticed the depression setting in[.]" Mother said, "Since July, I had eight surgeries. This Friday, it will be my 16th. All the stress. I'm so angry." Father said he used methamphetamine to stabilize his mood but would be willing to treat his bipolar disorder with psychotropic medication which he had not been prescribed since 2006. The social worker told Father he needed to stop abusing methamphetamine in order to move back into his home, and recommended Father consider a treatment center two blocks from the family's house so he could continue to drive Mother to her medical appointments as the couple wished. The jurisdiction/disposition report noted, "The child appears to be safe in the home of the mother, as long as, the father is not present, on drugs and arguing with the mother."
On June 18, 2019, the juvenile court conducted the combined jurisdiction/disposition hearing. DCFS agreed to strike the domestic violence counts (a-1 and b-1), and the court dismissed those counts. Father pleaded no contest to the substance abuse count (b-2).
The matter proceeded by way of argument as to the failure to protect portion of count b-2 alleged against Mother. The court essentially found Mother knew Father had been abusing drugs, but failed to take steps to protect William from Father's drug use (e.g., Mother did not ask Father to leave, Father did not get into a program). The court sustained count b-2 as amended as to both parents.
At the dispositional hearing, Mother agreed she could benefit from Nar-Anon (a program for individuals in a relationship with people who use drugs), but objected to DCFS recommendations for domestic violence and parenting programs and individual counseling. Mother noted the family had no prior DCFS history, and there was no evidence Mother had been a bad parent to William. Mother stressed the domestic violence allegations had been dismissed, the February 11 altercation was a one-time incident, and the parents otherwise got along very well.
The court declared William a dependent of the court, removed him from Father, and released him to Mother. The court ordered Mother to participate in a parenting program because the family had been "dealing with a lot of stressors," and "teenage years can be extremely challenging." Mother was also to participate in individual counseling to address case issues including "family stressors, Father's substance abuse, [and] domestic violence. . . ." The court continued monitored visitation for Father and ordered "No visitation for anyone under the influence of drugs or alcohol."
Mother appealed. Father did not.
DISCUSSION
Mother contends no substantial evidence supported the juvenile court's true finding on the failure to protect allegations, and the consequent jurisdictional and related dispositional orders should be reversed.
Respondent contends Mother's jurisdictional challenge is not justiciable because the allegations in count b-2 sustained against Father were sufficient, without more, to justify assumption of dependency jurisdiction over William. We exercise our discretion to consider Mother's appeal on the merits because the jurisdictional finding as against Mother could have a significant negative impact on her in current or future dependency proceedings — e.g., the outcome here could make the difference between Mother being an offending rather than a non-offending parent. (In re Andrew S. (2016) 2 Cal.App.5th 536, 542, fn. 2.)
A. Jurisdictional Finding As to Mother
1. Pertinent Law
A child may be adjudged a dependent of the court under the first clause of subdivision (b)(1) of section 300 upon proof of three elements: (1) a parent's "failure or inability . . . to adequately supervise or protect the child"; (2) causation; and (3) serious physical harm or illness to the minor, or a substantial risk of suffering serious harm or illness. (§ 300, subd. (b)(1); see In re R.T. (2017) 3 Cal.5th 622, 624 [a juvenile court need not find "that a parent is at fault or blameworthy for her failure or inability to supervise or protect her child"].) " 'The third element . . . effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur).' " (In re B.T. (2011) 193 Cal.App.4th 685, 692, abrogated on other grounds by In re R.T. (2017) 3 Cal.5th 622.) Evidence of past conduct may be probative of current conditions. (In re James R. (2009) 176 Cal.App.4th 129, 135-136, abrogated on other grounds by In re R.T., supra.) "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.' " (In re D.L. (2018) 22 Cal.App.5th 1142, 1146.)
We review jurisdictional findings for substantial evidence. (In re E.B. (2010) 184 Cal.App.4th 568, 574.) In doing so we view the evidence and draw all reasonable inferences in the light most favorable to the court's orders, and do not evaluate credibility or weigh conflicting evidence. (Id. at p. 575.) " 'In dependency proceedings, a trial court's determination will not be disturbed unless it exceeds the bounds of reason.' " (Ibid.)
2. Analysis
No substantial evidence indicated William was at substantial risk of serious physical harm as a result of Mother's failure or inability to adequately protect William from Father's methamphetamine abuse at the time of the jurisdictional hearing. The uncontradicted evidence shows the opposite.
More than a month before the jurisdictional hearing William was removed from Father. At that time Mother told a social worker Father would not be staying at the apartment anymore, said she understood William was officially detained from Father, and assured that he would have no contact with William. By the time of the jurisdictional hearing Father's address of record was in a different town. At disposition, the court continued William's removal from Father, limited Father to monitored visitation, and prohibited visitation by anyone under the influence of drugs or alcohol. As the DCFS jurisdictional report suggested, there would be no risk from which Mother needed to protect William under such circumstances (i.e., when Father "[was] not present, on drugs and arguing with the mother"). (See In re D.L., supra, 22 Cal.App.5th at pp. 1145, 1147 [reversing jurisdictional finding based on mother's alleged failure to protect child from a loaded rifle she knew father had stored in a location accessible to child, because the rifle had been removed from the home by the time of the jurisdictional hearing, father no longer resided with mother and child and was no longer welcome in the home, and father acknowledged he would take better precautions in the future].)
No evidence indicated William had previously been exposed to any threat of serious physical harm from Father's drug abuse, or that any such exposure would occur in the future. William never saw drugs or alcohol in the apartment, never saw Father using drugs or alcohol or under the influence of anything, and never saw him become angry or have drastic mood changes. In fact, William said he was not aware of Father's drug use until a social worker told him about it following the February 11 incident. No drug paraphernalia or alcohol was seen in the family's home. Father never used drugs or was high at home. Father displayed no visible signs of his drug use. Mother said he mostly "acts the same and talks the same." During one DCFS interview, Father displayed no typical signs of methamphetamine use even though he admittedly had used methamphetamine just the day before. Any potential risk of future physical harm to William from Father's drug abuse would be entirely speculative. Thus no substantial evidence supported finding Mother failed adequately to protect William from Father's drug abuse at the time of the jurisdictional hearing.
Respondent argues Father actually became depressed and violent due to his regular use of methamphetamine, an inherently dangerous drug. Nonetheless, there is no evidence Father's depression impacted William and no evidence Father's drug abuse caused him to be violent, much less in a manner that substantially risked ongoing serious physical harm to William at the time of the jurisdictional hearing. On the contrary, by all accounts William was well cared for by both of his parents. William had his own room in a tidy, well-kept apartment free of safety hazards. He received regular and appropriate medical care. He was not afraid of his parents, and felt safe and happy at home. He was on the honor roll at school with no behavioral issues or other concerns documented about his overall well-being. The February 11 incident was the first time a verbal argument had become physical despite Father's admission that he had been abusing drugs for many years during the couple's 30-year relationship. Father was cooperative during his arrest. Mother and Father did not argue or fight after the February 11 incident even though Father continued to use methamphetamine. The domestic violence counts were dismissed at DCFS's request. A specific risk of serious physical harm to William, a 15-year-old, may not be presumed from the mere fact that Father was secretly using methamphetamine. (E.g., In re Destiny S. (2012) 210 Cal.App.4th 999, 1003 [evidence of mother's use of methamphetamine and marijuana, without more, would be insufficient to bring minor within jurisdiction of the dependency court].)
Because there was no justification for assuming dependency jurisdiction based on Mother's alleged inability to protect William from Father's drug abuse, we reverse the jurisdictional order as to Mother.
B. Dispositional Orders
Mother contends the dispositional orders for a parenting program and individual counseling should be reversed. We agree as to parenting, but disagree as to individual counseling.
"The juvenile court has wide latitude in making orders necessary for the well-being of a minor." (In re Jasmin C. (2003) 106 Cal.App.4th 177, 180; § 362, subd. (a).) A dispositional order may include directing the child's parents to participate in counseling or parenting programs designed to eliminate those conditions that led the court to find the child a person described by section 300. (§ 362, subds. (a), (d).) A dispositional order must be in the best interests of the child considering the family's unique circumstances. (In re Nolan W. (2009) 45 Cal.4th 1217, 1229.) A dispositional order cannot be reversed " 'absent a clear abuse of discretion.' " (In re Drake M. (2012) 211 Cal.App.4th 754, 770.) We review the factual findings underlying a dispositional order for substantial evidence. (In re E.B., supra, 184 Cal.App.4th at p. 574.)
Here, there was no reasonable basis for requiring a parenting program as part of Mother's court-ordered case plan. At the dispositional hearing the court said it ordered parenting classes because the family had been "dealing with a lot of stressors," and "teenage years can be extremely challenging." Nonetheless, there is no evidence of any specific, ongoing deficiency in Mother's ability to parent William that reasonably indicates she would benefit from parenting instruction. On the contrary, uncontradicted evidence indicated that despite significant family stressors, William was well cared for by his parents, was comfortable around Mother, felt safe and happy at home with both parents, and managed to excel in school without behavioral problems. Consistently, the court never detained William from Mother. In fact, at the detention hearing the court granted DCFS discretion to allow Mother to monitor Father's visits. The unremarkable proposition that raising a teenager can be challenging is not a specific basis for ordering parenting in Mother's case.
Respondent contends ordering parenting was not an abuse of discretion because Mother had allowed Father to care for William even though she had known that Father's drug abuse had a negative impact on the family and did nothing about it for years, and she had accepted his decision not to enroll in drug treatment. Respondent mischaracterizes the record. Mother said that although she and Father separated seven years earlier because he was using methamphetamine, he was not using drugs when they reconnected six months later. Thereafter, Mother did not notice Father had been using drugs at all until November 2018, less than four months before the February 11 incident, when his bipolar-related depression returned. As discussed above, substantial evidence does not establish that Father's drug use caused the February 11 incident or otherwise negatively impacted William in any significant way, let alone that Mother knew as much and failed to shield William from it. The evidence does not reasonably reflect that Mother agreed Father could seek no drug treatment at all, as Respondent suggests. To the contrary, at one point Mother and Father agreed he would continue to attend an outpatient program, and later decided that he would decrease the drug use slowly on his own.
However, Mother admitted experiencing significant life stressors even before the February 11 incident (including the death of her mother and extensive treatment for a serious medical condition) for which she had previously been referred to counseling. At the dispositional hearing Mother agreed she could benefit from Nar-Anon, a support group for family members of drug abusers. The juvenile court could reasonably have determined that ordering individual counseling would facilitate family reunification under the circumstances. It was not necessary for there to be a jurisdictional finding involving Mother's conduct for the court to require individual counseling. (See generally In re D.M. (2015) 242 Cal.App.4th 634, 639 ["a dispositional order may reach both parents, including a nonoffending parent"]; In re I.A. (2011) 201 Cal.App.4th 1484, 1492 ["A jurisdictional finding involving the conduct of a particular parent is not necessary for the court to enter orders binding on that parent, once dependency jurisdiction has been established"].)
Accordingly, we reverse the juvenile court's dispositional orders as to Mother for parenting only.
DISPOSITION
The juvenile court's jurisdictional order as to Mother is reversed, the dispositional order as to her for parenting is reversed, and the court's orders are affirmed in all other respects.
NOT TO BE PUBLISHED
CHANEY, Acting P. J. We concur:
BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.