In re D.R. CA2/2 ( 2014 )

Filed 12/23/14 In re D.R. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re D.R. et al., Persons Coming Under the B255658
Juvenile Court Law. (Los Angeles County
Super. Ct. No. DK02137)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
DANIELLE H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Julie Fox
Blackshaw, Judge. Affirmed.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and
Appellant.
Richard D. Weiss, Acting County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
_________________________
Appellant Danielle H. (mother) appeals from the juvenile court’s jurisdictional
order pertaining to her two children, son D.R. (born in Dec. 2000) and daughter Dai. R.
(born in Feb. 2003) (the minors). Mother contends that her use of illegal drugs did not
place the minors at substantial risk of harm. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Facts Leading to Detention
The family came to the attention of the Los Angeles County Department of
Children and Family Services (Department) on July 3, 2013, when the Department
received a referral that mother was a “‘meth addict’” and was “high” two days earlier.
On July 5, 2013, mother tested positive for amphetamine, methamphetamine and
marijuana. At a team decision making meeting on July 12, 2013, mother stated that she
was willing to change her surroundings and stop partying, and that she had already
enrolled in a drug treatment program at the Lighthouse Drug Treatment Program
(Lighthouse). She was willing to start drug treatment and undergo random drug testing.
The Department recommended voluntary family maintenance (VFM) services.
Mother failed to submit to random drug testing on September 11 and 18, 2013.
On September 20, 2013, mother told the social worker that she was no longer enrolled at
Lighthouse due to her noncompliance. Mother was referred to and enrolled in another
drug program.
On October 15, 2013, the social worker interviewed mother and the minors at their
home. The minors denied seeing mother under the influence of drugs or alcohol, stated
they were comfortable in mother’s care, and did not express any issues or concerns.
Mother admitted using marijuana, but denied using methamphetamine. She told
the social worker: “‘I’m hanging out with the same people I was before, when this case
opened. I had a couple of drinks. I think this man who I started partying with again, I
think he is putting something in my drinks. This is just crazy[,] I don’t use Meth. I do
smoke marijuana but never would I use Meth. I do smoke other people[’]s weed, maybe
that man is lacing my joint with something. Maybe he is lacing it with meth.”
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On September 20, 2013, and October 15, 2013, mother tested positive for
amphetamine, methamphetamine and marijuana.
The Department learned that mother has a criminal history, which includes a 2009
felony conviction for possession of a controlled substance. Mother was sentenced to 12
months of probation, and one of the conditions of her probation was “drug treatment
placement.”
On October 28, 2013, the juvenile court granted the Department a warrant to
detain the minors, who were placed with their paternal grandmother.
The Petition
On November 5, 2013, the Department filed a petition on behalf of the minors
under Welfare and Institutions Code, section 300, subdivision (b),1 alleging that mother
has a history of substance abuse and is a current user of amphetamine, methamphetamine
and marijuana, which renders her incapable of providing regular care for the minors, and
that her substance abuse endangers the minors’ physical health and safety and creates a
detrimental home environment, placing the minors at risk of physical harm.
Detention Hearing
The juvenile court conducted the detention hearing on November 5, 2013. Mother
and the minors were present, as was the minors’ father, Byron R. (father). (Father is not
a party to this appeal.) The court ordered that the minors remain placed with the paternal
grandmother. It also ordered the Department to provide the parents with family
reunification services. Mother was ordered to participate in a drug treatment program
with random testing, and her visits with the minors were to be monitored.
Jurisdiction/Disposition Report
In its December 12, 2013, jurisdiction/disposition report the Department reported
that it interviewed mother on December 3, 2013. Mother denied missing drug tests on
September 11 and 18, 2013; she stated that she went to test but was unable to use the
bathroom the first time and did not produce enough urine the second time. She had no
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
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explanation for her positive tests. She stated: “Anything I do I don’t do in front of my
kids. I party but I don’t put my kids in harm[’]s way. I don’t do drugs in my house or in
front of my kids. My kids have never seen me do drugs or be high. I don’t lay up with
men in my house. I don’t disrespect my kids like that. Monday through Friday I am a
mom. But on the weekends when my kids are with their dad or their grandmother, I
party. I don’t party at my house or around my kids.”
Mother stated that she started smoking marijuana recreationally when she was 16
years old and uses it medically to treat back problems and carpal tunnel syndrome. She
possessed a medical marijuana card with an expiration date in February 2014. Mother
has never been formally employed; she has been styling hair since she was 12 years old
and earns money to supplement the public assistance she receives for the minors.
The minors reported that they liked living with their grandmother. They appeared
to be developing age appropriately and had no noted mental or emotional problems.
Mother maintained consistent visitation and contact with the minors.
The Jurisdiction Hearing
The juvenile court conducted the jurisdiction hearing on December 18, 2013. The
parties were represented by their counsel. Following oral argument, the court sustained
the section 300 petition as pled, ordered the minors to remain placed with the paternal
grandmother, and continued the matter for disposition.
Last Minute Information
In a last minute information report filed on March 18, 2014, the Department
reported that it was unable to approve the paternal grandmother for placement due to her
lengthy criminal history, which includes felony convictions for burglary, robbery, battery,
possession of a controlled substance, violation of parole and dissuading a witness with
threats of force. Father had moved into the grandmother’s house to keep the minors from
being displaced from their home and school, and mother was in agreement with the living
arrangement. Mother reported that she had reenrolled at Lighthouse, but the phone
numbers she provided for the Lighthouse were not working, and mother had failed to
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provide proof of enrollment. Mother acknowledged that she was not drug testing for the
Department, which could not confirm her claim that she was testing at Lighthouse.
Disposition Hearing
The juvenile court conducted the disposition hearing on March 18, 2014. Mother,
father and the minors were present. Minors’ counsel agreed with the Department that
returning the minors to mother would be detrimental to them. The court ordered the
minors to be placed with father; that family maintenance services be provided to father
and enhancement services be provided to mother; that mother participate in a drug and
alcohol program, a parenting class and individual counseling; and that mother be
accorded unmonitored visits after five clean and consecutive drug tests.
DISCUSSION
I. Section 300
The juvenile court assumed jurisdiction of the minors under section 300,
subdivision (b). A child comes within the jurisdiction of the juvenile court under section
300, subdivision (b), if the 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 by the inability
of the parent or guardian to provide regular care for the child due to the parent’s or
guardian’s mental illness, developmental disability, or substance abuse.”
In enacting section 300, the Legislature intended to protect children who are
currently being abused or neglected “and to ensure the safety, protection, and physical
and emotional well-being of children who are at risk of that harm.” (§ 300.2.) The
Legislature acknowledged that 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.)
We review a juvenile court’s jurisdictional findings for substantial evidence. (In
re Mariah T. (2008) 159 Cal.App.4th 428, 438.)
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II. Substantial Evidence Supports the Jurisdictional Finding
Mother describes herself as a “recreational” drug user. She argues that while she
used illegal drugs, including methamphetamine and marijuana, there is no evidence that
she abused such drugs and placed the minors at substantial risk of physical harm. We
disagree.
Substantial evidence supports the jurisdictional finding that mother abused illegal
drugs. In 2009, mother had a felony conviction for possession of a controlled substance
and was ordered into a drug treatment placement as a condition of her probation. Yet,
four years later, mother was still using amphetamine, methamphetamine and marijuana,
despite being aware of the serious criminal consequences.
Mother also continued to use drugs after the Department offered her VFM
services. The juvenile court noted that during the VFM period, mother had “gone in and
out of sobriety” and continued “to fail in her program,” which it found constituted one of
the definitions of addiction.
Mother also denied taking methamphetamine, including on one of the days that
she tested positive for methamphetamine (Oct. 15, 2013). She told the social worker that
she did not know how she ingested methamphetamine and claimed that someone must
have slipped it in her drinks or marijuana joints. As the juvenile court aptly noted, “[i]f
she doesn’t even know where she gets the meth, and she has the meth in her system, that
doesn’t make me feel that this is just recreational.”
Mother also told the social worker that she did not party or use drugs during the
week when the minors were in her care and custody. But at least two of mother’s
positive drug tests occurred during the week (Fri., Sept. 20, 2013, & Tue., Oct. 15, 2013),
and mother failed to test on September 11 and 18, 2013 (both Weds.). The juvenile court
properly found “a risk here for somebody who uses drugs that can’t explain when they
ingested the drugs, how they ingested the drugs, and lies about it to the social worker,
does ingest during the week. As a result of the tests, the court does see that this poses a
risk to the children.”
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Mother nevertheless argues that her drug use did not place the minors at
substantial risk of physical harm. But as the Department notes: “Although it is true that
mother appeared to have met the children’s needs, the juvenile court was rightfully
concerned that mother’s inability to remember or articulate how the methamphetamine
got into her system, combined with the fact that she tested positive on weekdays when
she reported the children were in her care, established that her use was risky and put her
children at substantial risk of harm.” As our Supreme Court recently stated: “[S]ection
300 does not require that a child actually be abused or neglected before the juvenile court
can assume jurisdiction. The subdivisions at issue here require only a ‘substantial risk’
that the child will be abused or neglected. . . . ‘The court need not wait until a child is
seriously abused or injured to assume jurisdiction and take the steps necessary to protect
the child.’ [Citation.]” (In re I.J. (2013) 56 Cal.4th 766, 773.)
We are satisfied that substantial evidence supports the juvenile court’s
jurisdictional finding that mother’s substance abuse places the minors at substantial risk
of physical harm.
DISPOSITION
The jurisdictional order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J.
ASHMANN-GERST
We concur:
_____________________________, P. J.
BOREN
____________________________, J.
CHAVEZ
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