Opinion
D072520
01-05-2018
In re S.S., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. H.D., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Diego Co. Super. Ct. No. NJ15314) APPEAL from an order of the Superior Court of San Diego County, Marian F. Gaston, Judge. Affirmed. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.
In dependency proceedings under Welfare and Institutions Code section 300, subdivision (b)(1), the juvenile court issued an order finding that it had jurisdiction over S.S., then about one year old, and removing her from the custody of H.D., her mother (Mother), and R.S., her father (Father). Mother appeals the order, contending there is insufficient evidence to support findings that: (1) S.S. suffered, or there is a substantial risk she will suffer, serious physical harm or illness as a result of the willful or negligent failure of Mother to adequately supervise or protect her from the conduct of the custodian with whom she has been left (§ 300, subd. (b)(1)); and (2) there will be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of S.S. if she is returned home and there are no reasonable means by which her physical health can be protected without removing her from Mother's physical custody. Mother also contends the court abused its discretion by not ordering informal supervision instead of declaring S.S. a dependent of the court. Based on our reasoning below, we affirm the order.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
On April 5, 2017, Mother left S.S., then 11 months old, in Father's care while he was under the influence of heroin. Police officers responded to a call and arrived at the home to find S.S. crying, hungry, and in need of a diaper change. Under a bed near S.S.'s crib, officers found heroin and methamphetamine. Father was arrested and S.S. was released to Mother's care.
Throughout April, the San Diego County Health and Human Services Agency (Agency) repeatedly attempted to contact Mother in person and by telephone. On April 21, Mother tested positive for amphetamines, methamphetamines, opiates, and morphine. She declined the Agency's offer of voluntary services and failed to undergo a drug test on May 4.
On May 4, Mother was arrested for mailing drugs to Father in jail. A detective, listening to hours of telephone calls between Mother and Father while he was in jail, heard Mother slurring her words and sound as if she was "nodding off." Mother and Father discussed having Mother contact drug suppliers to help in sending more drugs to Father in jail.
Following Mother's arrest, police officers went to Mother's home to check on S.S. and found her crying in her crib while Ms. M., her caretaker, was watching television in the living room. Ms. M. was talking rapidly and her skin had multiple open picked marks on her face and chin. Officers learned she had three charges of methamphetamine possession filed against her. Performing a field assessment, officers determined she was under the influence of a controlled substance. She had been caring for S.S. two to three times a week. Officers took S.S. to the Polinsky Children's Center.
During the Agency's investigation, it learned S.S.'s maternal and paternal grandparents relied on M.F., S.S.'s eight-year-old half sister, to inform them when S.S. needed intervention for her safety. Through M.F., they learned about several incidents during which S.S. was crying late at night and Mother was not home and could not be reached by telephone or, if her parents were home, they could not be awakened. The Agency also learned Father had been released from prison in 2015 after serving two years, subsequently failed at drug rehabilitation three times in four months, and then was in jail on seven occasions during 2016. In January 2017, Father was released from jail after serving five months and was arrested again less than a month later for driving under the influence of drugs. The following day, he returned to living with Mother.
Mother began using drugs at age 13, had become addicted to methadone while attempting to get off heroin, and later began using methamphetamine. She admitted she had used "everything but crack and PCP." Mother admitted using drugs while with Father and, after his arrest, using drugs alone. She had a criminal history involving robbery, theft, and drug possession. At her birth, S.S. tested positive for opiates and was placed on a morphine drip to manage her withdrawal symptoms.
On May 8, 2017, the Agency filed a section 300, subdivision (b)(1), dependency petition alleging that S.S. suffered, or there was a substantial risk she would suffer, serious physical harm or illness as a result of the willful or negligent failure of Mother to adequately supervise or protect her from the conduct of the custodian with whom she had been left. (Ibid.) The petition alleged Mother left S.S. inadequately supervised and protected when she left S.S. with Father who was arrested on drug charges. At that time, officers allegedly found heroin, methamphetamine, and drug paraphernalia that was accessible to S.S. In addition, the petition alleged that a few weeks later, Mother was arrested for allegedly mailing drugs to Father in jail and left S.S. with a neighbor who was found to be under the influence of drugs, had a drug abuse history, and multiple arrests for methamphetamine possession.
At S.S.'s detention hearing, the court found that a prima facie showing of the petition's allegations had been made and ordered that she be detained in out-of-home care. S.S. was placed confidentially with an approved relative. Mother was to have reasonable supervised visitation with S.S. and Mother and Father were to be provided with reasonable services. The court set a date for the jurisdictional and dispositional hearing.
In July, a contested jurisdictional and dispositional hearing was held for S.S. The court received the Agency's detention report, jurisdiction and disposition report, the addendum thereto, and Mother's stipulated testimony. Counsel for Mother and Father waived any cross-examination of the Agency's social worker. The evidence admitted at the hearing showed that Mother was distrustful of S.S.'s paternal grandmother and stated the Agency's detention report was a "book of bullshit and lies." Mother stated she had used drugs only twice since Father's arrest. On May 24, Mother agreed to call a substance abuse specialist, but did not want to start drug treatment immediately. She did not want to participate in inpatient drug treatment, but would if required to do so. She had a good job, which she did not want to lose by participating in inpatient treatment. She explained that her drug use arose out of depression and a prior fractured neck, which continued to cause her pain. She stated: "[G]oing to NA [Narcotics Anonymous] and AA [Alcoholics Anonymous] is a waste. We sit in there and hear everyone talk about using so all I want to do after that is use."
S.S.'s paternal grandmother believed Mother had been using drugs since at least the prior Thanksgiving. She believed that if Mother was trying to be sober, she would not have allowed Father to be in her home.
The detective who listened to the telephone calls between Mother and Father while he was in jail stated that Mother seemed like she was "high" for a majority of those calls. Father would beg Mother to get sober and wanted S.S. to be with the paternal grandmother because he was worried about Mother's drug use.
Although Mother had a few appropriate supervised visits with S.S., she showed up late twice and appeared to be "high" during one of the visits.
By early June, Mother had conceded she "somewhat needed" drug rehabilitation. She had attended some NA or AA meetings, completed intake forms for an outpatient treatment program, scheduled a therapy appointment, and planned to begin methadone treatment. Mother met with a substance abuse specialist, who stated they had a good meeting during which Mother seemed to acknowledge her need for treatment. However, Mother later described that meeting, stating: "I just told her what she wanted or they never let you leave." Mother also continued to blame the paternal grandmother for the Agency's involvement regarding S.S., but also admitted she (Mother) was to blame.
However, at the time of the jurisdictional and dispositional hearing, Mother had not yet begun therapy or outpatient drug treatment and continued to blame the paternal grandmother.
The Agency recommended that the juvenile court make a true finding on the petition, declare S.S. a dependent of the court, have S.S. detained with a relative, and order reunification services and supervised visits. S.S.'s counsel requested that the court follow the Agency's recommendations. Mother and Father argued the Agency had not carried its burden of proof and Mother requested that the court instead order voluntary services and allow S.S. to return to her care.
Following arguments of counsel, the court found the allegations in the petition to be true by clear and convincing evidence. It followed the Agency's recommendations, declaring S.S. a dependent of the court and removing her from her parents' custody based on its finding by clear and convincing evidence that there was, or would be, a substantial danger to her physical health, safety, protection, or physical or emotional well-being if she were returned home and there were no reasonable means by which her physical health could be protected without removing her from her parents. The court also found that reasonable efforts had been made to prevent or eliminate the need for her removal from the parents' home. It placed S.S. in an approved home of a relative. It ordered services for her parents and ordered them to comply with those services. The court set a date for the six-month review hearing.
Mother timely filed a notice of appeal.
Father has not filed a notice of appeal.
DISCUSSION
I
Jurisdictional and Dispositional Hearings Generally
After a dependency petition is filed and a minor is detained by a juvenile court following a detention hearing, a jurisdictional and dispositional hearing must be held to determine whether the court has jurisdiction over the minor and, if so, to decide the proper disposition for the minor. (See, e.g., §§ 300, 355, subd. (a), 356, 358, 360.) In particular, section 300, subdivision (b)(1), provides a child is within the jurisdiction of the juvenile court if, inter alia, "[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 or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left . . . ." "If the court finds the child is [a person described by section 300], it takes jurisdiction over the child. (§ 300.) The court then considers whether the child should be declared a dependent. (§§ 358, subd. (a), 360.) If the child is declared a dependent, the court considers whether he or she will be at substantial risk of harm if left in the custody of the parent. (§ 361.) If there is a substantial risk of harm, the court removes the child from parental custody. (§ 361, subd. (c)(1).)" (In re Austin P. (2004) 118 Cal.App.4th 1124, 1129.)
Section 361, subdivision (c), provides:
"A dependent child shall not be taken from the physical custody of his or her parents or guardian or guardians 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 listed in paragraphs (1) to (5), inclusive . . . :"The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.) A court may consider a parent's past conduct along with present circumstances. (In re Maria R. (2010) 185 Cal.App.4th 48, 70.) "A parent's past conduct is a good predictor of future behavior." (In re T.V. (2013) 217 Cal.App.4th 126, 133.) A court has broad discretion in determining an appropriate disposition in a child's best interest. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.)
"(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 or guardian's physical custody. . . ." (Italics added.)
A juvenile court may sustain a juvenile dependency petition by finding its allegations true by a preponderance of the evidence. (In re P.A. (2006) 144 Cal.App.4th 1339, 1344; In re Brison C. (2000) 81 Cal.App.4th 1373, 1379.) On appeal, it is the parent's or guardian's burden to show substantial evidence did not support the court's jurisdictional finding. (In re T.V., supra, 217 Cal.App.4th at p. 133; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) Similarly, "[o]n appeal from a dispositional order removing a child from [his or her] parent, we apply the substantial evidence standard of review, keeping in mind that the [juvenile] court was required to make its order based on the higher standard of clear and convincing evidence." (In re Noe F. (2013) 213 Cal.App.4th 358, 367.) In applying the substantial evidence standard of review, "our power begins and ends with a determination as to whether substantial evidence exists, contradicted or uncontradicted, supporting the dependency court's determinations. We review the evidence in the light most favorable to the dependency court's findings and draw all reasonable inferences in support of those findings. [Citations.] Thus, we do not consider whether there is evidence from which the dependency court could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did draw. [Citations.]" (Id. at p. 366.)
II
Jurisdictional Findings
Mother contends there is insufficient evidence to support a finding that, at the time of the jurisdictional hearing, S.S. was subject to a substantial risk of serious physical harm. However, based on our review of the record, we conclude there is substantial evidence to support the juvenile court's jurisdictional finding under section 300, subdivision (b)(1), that, at the time of the jurisdictional hearing, S.S. suffered, or there was a substantial risk she would suffer, serious physical harm or illness as a result of the willful or negligent failure of Mother to adequately supervise or protect her from the conduct of the custodian with whom she had been left. The record supports the reasonable inference that Mother had left S.S. in the care of two inappropriate caregivers within a month. First, she left S.S. with Father, whom she knew was a long-time drug abuser. Although the evidence could support a reasonable inference that she knew Father was under the influence of drugs at the time she left S.S. in his care, the evidence clearly supported a reasonable inference that she knew, or should have known, there was at least a substantial risk that he would use drugs while caring for S.S. and therefore she (S.S.) would be at a substantial risk of physical harm while in his care. (Cf. In re J.L. (2014) 226 Cal.App.4th 1429, 1434 [child may be at risk if parent knew facts about caregiver that would show child would be at risk if left with caregiver].) Mother and Father had used drugs together three or four times recently before his arrest.
Second, Mother, after her arrest for allegedly mailing drugs to Father in jail, left S.S. with Ms. M., whom Mother had known for only six months and apparently had known she had been charged three times for methamphetamine possession. At that time, Ms. M. was believed to be under the influence of drugs by an experienced officer. Although the evidence could support a reasonable inference that Mother knew Ms. M. was under the influence of drugs at the time she left S.S. in her care, the evidence clearly supported a reasonable inference that she knew, or should have known, there was at least a substantial risk that Ms. M. would use drugs while caring for S.S. and therefore S.S. would be at a substantial risk of physical harm while in her care. (Cf. In re J.L., supra, 226 Cal.App.4th at p. 1434.)
Furthermore, there is substantial evidence to support a reasonable inference that Mother's failure to protect S.S. by placing her with inappropriate caregivers would likely continue in the future. During April 2017, the Agency repeatedly attempted to contact Mother without success. She declined its initial offer of voluntary services and then was arrested for mailing drugs to Father in jail. Although she subsequently attended some NA or AA meetings, she described those meetings as "a waste." As of 10 days before the contested hearing, Mother still had not begun a substance abuse treatment program or therapy despite her admitted drug use. It can also be reasonably inferred that Mother had not fully acknowledged or accepted her need for, and was even resistant to, substance abuse treatment because she stated that drug rehabilitation was only "somewhat needed." Also, Mother stated she told the substance abuse specialist only "what she wanted" during her meeting or otherwise "they never let you leave." Furthermore, although Father was removed from the home on his arrest and presumably thereafter could not pose a risk to S.S.'s physical health, Mother nevertheless made another inappropriate choice when she placed S.S. in Ms. M.'s care on her own arrest for mailing drugs to Father in jail. The juvenile court could properly consider Mother's past conduct as a predictor of her future behavior and, based on that past conduct and the other evidence described above, reasonably infer that Mother would continue to fail to protect S.S. from a substantial risk of physical harm. (Cf. In re Yolanda L. (2017) 7 Cal.App.5th 987, 994 [based on evidence, court could reasonably infer father's neglectful conduct was not a momentary lapse in judgment, but was instead likely to recur]; In re T.V., supra, 217 Cal.App.4th at pp. 133-134.)
Accordingly, we conclude there is substantial evidence to support the court's jurisdictional finding that there was a substantial risk that S.S. suffered, or would suffer, serious physical harm or illness as a result of the willful or negligent failure of Mother to adequately supervise or protect her from the conduct of the custodian with whom she had been left.
To the extent Mother cites evidence and suggests inferences that would have supported a contrary finding by the court, she either misconstrues or misapplies the substantial evidence standard of review. (In re T.V., supra, 217 Cal.App.4th at p. 133; In re L.Y.L., supra, 101 Cal.App.4th at p. 947; In re Noe F., supra, 213 Cal.App.4th at p. 366.) In particular, Mother's willingness to participate in substance abuse treatment and engage in services does not show there is necessarily insufficient evidence to support the court's finding. Neither In re A.G. (2013) 220 Cal.App.4th 675 nor In re A.J. (2013) 214 Cal.App.4th 525, cited by Mother, is factually apposite to this case or otherwise persuades us to reach a contrary conclusion. In both cases, there was a protective parent available to provide appropriate and safe care for the child. (In re A.G., at p. 686; In re A.J., at p. 535.)
III
Removal of S.S. from Mother's Physical Custody
Mother contends that there is insufficient evidence to support the juvenile court's dispositional order declaring S.S. a dependent of the court and removing her from Mother's physical custody. In particular, Mother argues that there is insufficient evidence to support the findings under section 361, subdivision (c)(1), that: (1) there will be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of S.S. if she is returned home; and (2) there are no reasonable means by which her physical health can be protected without removing her from Mother's physical custody.
Based on our review of the record, we conclude there is substantial evidence to support the court's dispositional order. As discussed above, although at the time of the contested hearing Father was in jail and may have continued thereafter to be incarcerated and therefore out of the home, Mother nevertheless had made another inappropriate choice for S.S.'s care (i.e., Ms. M.) and Mother was still using drugs, was minimally cooperative with services, and had not yet begun substance abuse treatment or therapy. She considered the NA or AA meetings she attended to be "a waste." She displayed little insight regarding the risks posed to S.S.'s physical safety and blamed the paternal grandmother for the Agency's involvement. The court could reasonably infer from that evidence, as well as from Mother's past conduct as a predictor of her future conduct, that Mother would likely continue to fail to protect S.S. in the future if S.S. were left in her care. Therefore, there is substantial evidence to support the court's findings that there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of S.S. if she were returned home, and there were no reasonable means by which her physical health could be protected without removing her from Mother's physical custody. (§ 361, subd. (c)(1).)
To the extent Mother cites evidence and suggests inferences that would have supported contrary findings by the court, she either misconstrues or misapplies the substantial evidence standard of review. (In re T.V., supra, 217 Cal.App.4th at p. 133; In re L.Y.L., supra, 101 Cal.App.4th at p. 947; In re Noe F., supra, 213 Cal.App.4th at p. 366.) In particular, Mother's willingness to participate in substance abuse treatment and engage in services does not show there is necessarily insufficient evidence to support the court's findings. In re Jasmine G. (2000) 82 Cal.App.4th 282, In re Steve W. (1990) 217 Cal.App.3d 10, and In re Paul E. (1995) 39 Cal.App.4th 996, cited by Mother, are factually inapposite to this case and do not otherwise persuade us to reach a contrary conclusion. Furthermore, contrary to Mother's apparent assertion, a child need not be actually harmed before removal from a parent is appropriate. (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.) Therefore, the fact that S.S. had not, in fact, suffered any actual physical harm by the time of the hearing does not show there is insufficient evidence to support the court's removal order. (Ibid.)
IV
Informal Supervision
Mother contends the juvenile court should have exercised its discretion under section 360, subdivision (b), and chosen the lesser alternative to dependency of leaving S.S. in her care and ordering informal services for, and informal supervision of, the family without declaring S.S. a dependent of the court. "Once the juvenile court finds jurisdiction under section 300, it must adjudicate the child a dependent unless the severity of the case warrants nothing more than the Agency's supervision of family maintenance services. Under section 360, subdivision (b), if appropriate, the court may, without adjudicating the child a dependent, order that services be provided to keep the family together under the informal supervision of the child welfare agency. [Citations.] [¶] Whether to exercise this option under section 360, subdivision (b), is a discretionary call for the juvenile court to make; it may opt to do so, but it need not. 'The court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accord with this discretion.' [Citation.] As an appellate court, we cannot reverse the court's dispositional order absent a clear abuse of discretion. [Citation.] A court exceeds the limits of legal discretion if its determination is arbitrary, capricious or patently absurd. The appropriate test is whether the court exceeded the bounds of reason. [Citation.]" (In re N.M. (2011) 197 Cal.App.4th 159, 171.)
Based on our review of the record in this case, we cannot conclude that the juvenile court abused its discretion by not exercising its option under section 360, subdivision (b), to order only family services and informal supervision by the Agency without declaring S.S. a dependent of the court. The record provides ample support for the court's determination that formal supervision was appropriate. Given the substantial evidence supporting the court's removal order as discussed above, the court properly rejected Mother's request for informal supervision and instead concluded it needed to supervise S.S. as a dependent of the court. Accordingly, we cannot conclude that the court acted arbitrarily or otherwise abused its discretion by determining that the section 360, subdivision (b) option was insufficient to protect S.S. and by instead declaring her a dependent of the court and ordering formal services for, and formal supervision of, the family. (Cf. In re N.M., supra, 197 Cal.App.4th at pp. 171-172 [no abuse of discretion found where juvenile court did not choose § 360, subd. (b), option and instead declared child dependent and ordered formal supervision].) As in In re N.M., the juvenile court in this case could have reasoned that "[a]lthough there was evidence that [Mother] was largely cooperative and had started services before the joint jurisdictional and dispositional hearing, the potential for recurrence of the abuse [or failure to protect] remained." (Id. at p. 171.) Mother has not carried her burden on appeal to show that the court abused its discretion by not choosing the section 360, subdivision (b), option of ordering informal services and supervision without declaring S.S. a dependent of the court. In re Jasmine C. (2003) 106 Cal.App.4th 177, cited by Mother, is factually inapposite to this case and does not otherwise persuade us to reach a contrary conclusion.
DISPOSITION
The order is affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. GUERRERO, J.