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Kern Cnty. Dep't of Human Servs. v. Claudia R. (In re Christina H.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 16, 2021
No. F081387 (Cal. Ct. App. Feb. 16, 2021)

Opinion

F081387

02-16-2021

In re CHRISTINA H., a Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. CLAUDIA R. et al., Defendants and Respondents; CHRISTINA H., Appellant.

Shaylah Padgett-Weibel, under appointment by the Court of Appeal, for Appellant Christina H. Margo A. Raison, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent. Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Respondent Claudia R. No appearance for Defendant and Respondent Christopher H.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JD140943-00)

OPINION

THE COURT APPEAL from an order of the Superior Court of Kern County. Marcos R. Camacho, Judge. Shaylah Padgett-Weibel, under appointment by the Court of Appeal, for Appellant Christina H. Margo A. Raison, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent. Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Respondent Claudia R. No appearance for Defendant and Respondent Christopher H.

Before Poochigian, Acting P.J., Franson, J. and Meehan, J.

-ooOoo-

Nine-year old Christina H. challenges the juvenile court's order removing her from the physical custody of her mother at the disposition hearing (Welf. & Inst. Code, §§ 358, 361.) Claudia R. (mother) joins in Christina's argument. We affirm.

All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

STATEMENT OF THE FACTS AND CASE

In April of 2020, sheriff deputies from both Kern and Los Angeles counties conducted a search at a home in Bakersfield and discovered 2000 marijuana plants, hazardous chemicals, a bypassed electrical box, suspected cocaine, firearms and ammunition, and a large amount of currency. Mother, her boyfriend and then nine-year-old Christina were all present. Mother admitted that Christina helps with the marijuana grow. Jaime M., mother's boyfriend (hereafter boyfriend) who was also present, stated that the marijuana grow had been going on for approximately eight months. He admitted to both selling and using marijuana. Mother admitted that she and boyfriend also had other marijuana grows at two other locations. Both mother and boyfriend were taken into police custody and subsequently charged with several theft and drug-related offenses.

The Kern County Department of Social Services (department) received a referral concerning Christina, who was taken into protective custody. Christina told a social worker that she helped feed, water and remove seeds from the plants, but she was not forced to do so. She had become accustomed to the smell of the plants, and thought boyfriend, whom she referred to frequently as her stepfather, smoked only cigarettes. She insisted that she felt safe in the house, was not bothered by boyfriend's friends, there was plenty of food in the house, and she did not witness any domestic violence between mother and boyfriend. Christina missed her cats and did not want to stay in foster care.

A social worker spoke to mother, who claimed law enforcement was looking for cocaine, but only found marijuana. The house was rented in mother's name, but she insisted that marijuana did not belong to her or boyfriend, but to boyfriend's sister and they were only helping to care for the plants. Mother explained that she had a jewelry and bow making business and she sold the items online. According to mother, boyfriend worked with his sister "fixing car seats." Mother stated that Christina helped with the marijuana plants by watering them and carrying them to different areas.

Mother had a restraining order out against Christina's father (Christopher H.) since 2018; it would expire in 2028. The house was described as in "complete[] disarray," which mother blamed on a BBQ they had had the day before and the array of animals they had in and out of the house. According to mother, the marijuana plants and nothing related to them was left in the house. The only thing that needed to be done, according to mother, was to get the electricity back on in the house.

There was no prior child protective service history found for either mother or father. However, boyfriend had a previous child removed from his custody in 2012 when a search of his home in Los Angeles revealed methamphetamine, cocaine and a loaded firearm within the child's reach. Boyfriend and the child's mother were arrested for child endangerment and possession of narcotics for sale. Boyfriend was later reunified with the child and the case dismissed. Petition

The department filed a section 300 petition on April 30, 2020, alleging Christina was at risk of harm due to mother's inability to adequately protect her from the danger of the marijuana business in the home. Detention

At the detention hearing on May 1, 2020, the department submitted on the report; mother acknowledged receiving the petition, waived reading thereof and formal advisements, entered general denials and waived time, as did Christina. The juvenile court ordered Christina detained and gave the department discretion to place her back with mother, if safe and appropriate, pending further hearing. Jurisdiction and disposition were scheduled for June 15, 2020. Jurisdiction

The report prepared for jurisdiction stated that Christina had been placed in foster care. After the detention hearing, mother had been provided with a voluntary case plan. Mother was asked to let the department know when the electricity had been restored in the home. A May 8, 2020 assessment of mother's home found no safety hazards and no marijuana plants or drug paraphernalia.

At mediation on June 8, 2020, mother agreed to submit on the allegations of the petition. At the June 15, 2020, jurisdiction hearing, the juvenile court found the allegations of the petition true. Disposition was continued to July 10, 2020. Disposition

The report prepared for disposition stated that Christina was still in a foster home, where she was doing well and felt safe, but was sad and wanted to see her mother. She had regular 30-minute virtual visits at least three times a week, but in-person visits were not available due to Covid-19.

A supervised visit was allowed at a mall on June 12, 2020. Mother and Christina walked around the mall and ate at the food court. Two additional similar visits in June 2020 also went well. At the visit on June 26, 2020, mother was concerned about Christina having lice and relayed that Christina had told her the caregiver did not allow the children to shower every day and had not changed bed sheets in over a month. When the caregiver was confronted with this information at the end of the visit, she was upset and said she did not deal with children with lice and usually "returns them back," which made Christina cry. The caregiver did not want mother to have a visit for a month until she could treat the lice problem.

The department recommended family reunification services for mother. The initial plan referred mother for parenting and neglect education, and had requested mother provide proof of enrollment, which she had not yet done. The social worker recommended a "Learning to Protect" counseling component to the case plan because boyfriend had returned to mother's home "as if nothing ever happened." While mother had more recently provided information that boyfriend had moved out, he continued to visit weekly. The report stated that mother "appears irresolute about her decision by indicating she will end the relationship once her daughter is home." The department did not recommend family maintenance services because boyfriend had been "through a similar situation in 2012 and had done so again in the current case," placing Christina's "safety and well-being at risk."

At the disposition hearing on July 10, 2020, mother requested family maintenance services, stating she no longer resided with boyfriend. Christina joined in that request. The juvenile court agreed with the department and ordered family reunification services and ordered Christina removed from mother's home. In doing so, it reasoned as follows:

"I guess the court's concern is that the mother is still indicating that she's gonna ... maintain a relationship with ... the boyfriend until the child's released, which seems to me to indicate that she hasn't made any plans for purposes of what's gonna happen when the child's released as to the relationship with the boyfriend. [¶] ... [H]as there been an agreement between her and the boyfriend that he's no longer to come around the home, he's no longer going to be there? He is paying for ... part of the home, so I don't know if ... she tells me that he's not supposed to come around the home or not to be at the home, that he's gonna take that support, and that she's not gonna be able to have that support for purposes of continuing with the child. The department is also recommending that she do Learning to Protect as an additional component. [¶] Just in terms of the gravity of the situation and in terms of where it was when the child was
detained and also based on the fact of the boyfriend's previous issue with a similar situation, I still think there is substantial evidence here and clear and convincing evidence to continue to detain the child under family reunification services as opposed to family maintenance. [¶] Again, my concern is I don't see that the mother has made a clean decision in terms of breaking off with the boyfriend. And how is she gonna bring that child back home safely when she's not still relying on the boyfriend paying for the rent? And the issue is that the boyfriend does have something over her in terms of having the child go back into the home and then she's gonna have to again do whatever the boyfriend asks her to do."
While the juvenile court stated that its concern was not certain, it did state that it had "occurred twice already with this particular individual." And the juvenile court stated that it was enough of a concern "to find that there is clear and convincing evidence that the child would still be in danger if released at this time to the mother."

A six-month review hearing was set for January 7, 2021.

DISCUSSION

On appeal, Christina contends substantial evidence does not support the juvenile court's orders removing her from mother's custody. We affirm.

"After finding that a child is a person described in Section 300, the court shall hear evidence on the question of the proper disposition to be made of the child." (§ 358, subd. (a).) In order to remove a child from parental custody, the juvenile court must find by clear and convincing evidence there is or would be a substantial danger to the child's physical or emotional well-being if the child were returned home and there are no reasonable means by which the child's physical health can be protected short of removal. (§ 361, subd. (c).)

"The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) "In determining whether a child may be safely maintained in the parent's physical custody, the juvenile court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention." (In re D.B. (2018) 26 Cal.App.5th 320, 332.) "A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] '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 N.M. (2011) 197 Cal.App.4th 159, 169-170.)

On a challenge to the juvenile court's dispositional order, we review the finding to determine whether substantial evidence supports it. We do so bearing in mind that the juvenile court's decision to order a child removed from parental custody must be supported by the heightened standard of clear and convincing evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)

At the time Christina was removed from mother's home, Christina had access to marijuana and cocaine in the home, as well as hazardous chemicals, exposing her to a substantial risk of serious physical harm. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 824, [substantial risk of harm found where mother left drugs in location available to child], abrogated in part on other grounds in In re R.T. (2017) 3 Cal.5th 622, 627-630; see, also In re Kristin H., supra, 46 Cal.App.4th at p. 1651 [leaving drug paraphernalia within child's reach indicated gross lack of attention to child's welfare].) In addition, running a marijuana cultivation operation in the family home exposed Christina to secondary risk of physical violence associated with illegal drug sales. (See, e.g., People v. Dillon (1983) 34 Cal.3d 441, 450 [defendant convicted of murder for killing guard at marijuana farm].)

Mother contends, however, that the juvenile court erred when it found an ongoing risk at the time of disposition as the marijuana plants and paraphernalia had been removed and the house was free of safety hazards with plumbing, heating, and electricity restored, and that she had a plan to break off her relationship with boyfriend when Christina was returned. While the social worker verified that the house had been cleared of the marijuana operation and was hazard free, this did not sufficiently ameliorate the risks to Christina.

Mother downplayed the severity of the items found in the home and claiming the marijuana operation, which had been going on for eight months, belonged to boyfriend's sister. Mother also failed to cooperate with the voluntary case plan set up for mother, failing to provide proof of enrollment in parenting and neglect education.

Most telling, mother continued her relationship with boyfriend, who had a prior history of a similar situation in 2012, when his own child was made a dependent of the juvenile court after he left cocaine, marijuana, and firearms within reach of his child. This current situation was even more severe, as mother and boyfriend allowed Christina to feed and water the marijuana plants and remove the seeds. And yet, mother allowed boyfriend back into the home "as if nothing ever happened." While mother claimed she would end the relationship once Christina was returned to her, the juvenile court was understandably wary of mother's statement, noting that she was financially dependent on boyfriend and she failed to appreciate the seriousness of exposing Christina to living and working in an illegal marijuana operation.

In In re Yolanda L. (2017) 7 Cal.App.5th 987, the court upheld the juvenile court's removal orders based on the presence of a loaded handgun in a location in the home and three pounds of methamphetamine in the family vehicle, both accessible to the children. (Id. at pp. 993-996.) The father, who was subject to a drug trafficking investigation, admitted he had engaged in similar conduct on at least one previous occasion. (Id. at p. 994.) The court in In re Yolanda concluded that the juvenile court "could infer that the conduct was likely to recur and did not represent a momentary lapse in judgment." (Ibid.)

Under the circumstances before it, the juvenile court here did not err in finding, by clear and convincing evidence, that placement of Christina in mother's home would involve an ongoing risk of serious physical harm to Christina. We reject Christina's claim to the contrary, and therefore mother's claim as well.

DISPOSITION

The disposition order is affirmed.


Summaries of

Kern Cnty. Dep't of Human Servs. v. Claudia R. (In re Christina H.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 16, 2021
No. F081387 (Cal. Ct. App. Feb. 16, 2021)
Case details for

Kern Cnty. Dep't of Human Servs. v. Claudia R. (In re Christina H.)

Case Details

Full title:In re CHRISTINA H., a Person Coming Under the Juvenile Court Law. KERN…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Feb 16, 2021

Citations

No. F081387 (Cal. Ct. App. Feb. 16, 2021)