In re Elijah C. CA2/2 ( 2015 )

Filed 10/6/15 In re Elijah C. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ELIJAH C. et al., Persons Coming B258617
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK92381)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
CECILIA B.,
Defendant and Appellant.
APPEAL from orders and findings of the Superior Court of Los Angeles County.
Stephen C. Marpet, Juvenile Court Referee. Affirmed.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
_________________________
Cecilia B. (mother) appeals from the juvenile court’s jurisdiction order and
findings after it sustained a petition pursuant to section 387 of the Welfare and
Institutions Code1 filed on behalf of her children, Elijah C. (Elijah) and Cherish B.
(Cherish) (collectively minors). Also, mother appeals from the disposition order
removing the minors from her custody and requiring that her visits with them be
monitored. We find no error and affirm.
FACTS2
“The minors
“Elijah was born in 2008. His father is Shannon C. (father). Cherish was born in
2010. Her father is George B. (George).
“2012 dependency proceeding regarding Elijah
“On March 5, 2012, the Department [of Children and Family Services
(Department)] filed a petition regarding Elijah under . . . section 300, subdivisions (a) and
(b). Father was the offending parent. At the time, mother was incarcerated.[] A month
later, the juvenile court terminated jurisdiction with a family law order giving mother sole
legal and physical custody.
“Events leading up to detention in 2013
“On April 2, 2013, the minors came to the attention of the Department after
receiving a call from a clinician at a hospital who reported that the mother had been
placed on a psychiatric hold after she overdosed on pills in an attempt to commit suicide.
According to the clinician, mother had attempted suicide on two prior occasions, and
each time had been hospitalized.
“Mother tested positive for cannabis and cocaine.
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2
In part, we have utilized the statement of facts from our prior opinion, In re
Elijah C. (Feb. 10, 2015, B254463) [nonpub. opn.] (Elijah C. I).
2
“At the time of the referral, mother had been residing with maternal grandmother,
Alberta W. (Alberta).[3] A social worker visited Alberta’s home. She reported that she
was Cherish’s primary caregiver, Elijah was living with father, and George was
incarcerated. About a week later, the social worker interviewed mother. During that
interview, mother said her life felt like it was turning upside down because she had lost
her job and apartment. She was seeing a therapist, and she was receiving mental health
services as well as substance abuse counseling. She stated that she ensured that the
minors were supervised at all times. The social worker spoke to the minors’ teachers and
learned that they attended school regularly, and that whenever mother dropped them off,
she acted appropriately.
“On July 12, 2013, mother drug tested. The result was negative.
“About a month and a half later, in August or September 2013, mother was
reportedly living in a motel on a voucher. After running out of psychotropic medication
and having trouble sleeping, she drove to a service provider to replenish her medication.
During the ensuing assessment, she acted erratic, leading the service provider to believe
she was intoxicated. Mother submitted to a drug test, which was positive for cocaine.
That meant she had used the drug recently. She kept trying to rush the assessment,
saying that she needed to pick up the minors. The service provider gave mother a
primary diagnosis of Bipolar II and a secondary diagnosis of cocaine abuse. Based on
her diagnosis, she received a prescription for psychotropic medication. She asked father
to take care of the minors until the cocaine was out of her system.
“When a social worker spoke to mother via telephone, she said that she did not
have a place to live and was looking for a homeless shelter. Alberta reported that mother
had been living in Alberta’s home with the minors but had left a few days before. Mother
returned to Alberta’s home, and the social worker spoke to her. She promised to stay at
Alberta’s house and submit to a drug test. Alberta agreed to supervise the minors.
3
In the appellate record, Alberta is sometimes referred to as Alberta. On appeal,
mother refers to her as Albertha.
3
“At a team decision meeting on September 24, 2013, mother drug tested. The
result was negative. She agreed to continue seeing a psychiatrist and submit to random
drug testing. A few days later, the Department received notice that mother was
participating in various support groups at a clinic, and had been diagnosed with a panic
disorder. A few weeks later, mother consented to the removal of the minors from her
custody. Until mother completed her programs, the plan was for Elijah to remain in
father’s care, and for Cherish to be in the joint care of Alberta and Cherish’s paternal
grandmother, Denise B. (Denise).
“A social worker inspected father’s home. Later, the social worker discovered that
father had an extensive criminal history—including a conviction for lewd and lascivious
acts with a child under 14 years of age—and had a history of drug abuse and domestic
violence. Father consented to Elijah’s removal and his placement in the care of Alberta
pending further investigation.
“The section 300 petition
“The Department filed a petition pursuant to section 300, subdivision (b) alleging
that mother and father were unable to supervise and care for the minors. As to mother, it
was alleged she had a history of drug abuse, cocaine use, and mental and emotional
problems. Regarding father, it was alleged that he was a registered sex offender who had
convictions for lewd or lascivious acts with a child under 14 years of age, possession of a
controlled substance, and battery on a spouse. The petition alleged that neither of the
minors had known Indian ancestry.
“The detention hearing
“At the detention hearing, mother and father each executed a Parental
Notification of Indian Status form and denied Indian heritage.
“Denise was present at the hearing. She informed the juvenile court that her
family had Indian ancestry through the Cherokee and Crow tribes, but her parents were
not ‘on the roll.’ The juvenile court ordered the Department to interview Denise further
and ‘walk’ the matter on if it appeared that notice to the tribes was appropriate.[]
4
“The juvenile court detained the minors and placed them with Alberta. Family
reunification services were ordered. Mother was given unmonitored visits on the
condition she submit to weekly, random drug tests and not have any missed or positive
tests.
“Mother was a no show for drug tests on November 7, 2013, November 18, 2013,
December 2, 2013, and December 16, 2013. Other drug tests were negative.
“Jurisdiction and disposition hearing
“The parties convened for a hearing on January 6, 2014. Elijah was five years old
and Cherish was three years old.
“The juvenile court admitted into evidence the Department’s detention report with
all attachments, the jurisdiction/disposition report and all attachments, a January 6, 2014
last minute information report with all attachments, a report from a multidisciplinary
assessment team, and all minute orders in the case. The parties did not call any
witnesses.
“The petition was sustained.
“The juvenile court found by clear and convincing evidence there was a
substantial danger to the minors’ physical and mental well-being if they remained in
mother’s custody. The minors were placed with Alberta. Mother was authorized to live
in Alberta’s home and have unmonitored contact with the minors. However, mother was
advised that if she missed a drug test, or tested positive, then she would be ordered out of
Alberta’s home.
“Mother was ordered to attend and complete a drug and alcohol program with
weekly, random testing. In addition, she was ordered to attend and complete an
‘aftercare’ program with Alcoholics Anonymous, attend individual counseling designed
to address the issues in the case, follow-up with a mental health assessment, and take all
medications prescribed by a therapist.” (Elijah C. I, supra, B254463, at pp. 2–6.)
5
The first appeal
Mother challenged the jurisdiction and disposition orders in Elijah C. I. We
affirmed the jurisdiction order and dismissed the portion of the appeal pertaining to the
disposition order. (Elijah C. I, supra, B254463, at p. 10.)
The minors’ extended visit with mother
Alberta was hospitalized several times due to illness and was unable to provide
care for the minors. As a result, mother provided care. On March 13, 2014, Alberta
passed away. Elijah remained in mother’s custody. For a while, Cherish was in the
custody of Denise B., then later was returned to mother.
Mother began the Asian American Drug Abuse Program (AADAP) on March 17,
2014. She was prescribed Resperdol and Zoloft. Also, she began life coaching classes
and individual counseling, and she began drug testing through Pacific Toxicology at a U-
Turn testing site. She was a no show for drugs tests scheduled for March 20, 2014, and
March 25, 2014.
On April 3, 2014, a social worker assessed mother’s home, found no concerns, and
recommended that the minors stay with mother on an extended visit. A few days later, at
a review hearing, the juvenile court ordered the minors released to mother on the
condition that she submit to weekly random drug and alcohol tests, and that her tests
come back clean. In addition, she was ordered to continue her current counseling
programs. The juvenile court informed her that if she tested dirty or missed a drug test,
the minors would be detained.
In the addendum report, the Department reported that mother was having difficulty
participating in her treatment programs because of lack of transportation and child care
demands. Mother stopped going to the AADAP on April 11, 2014, and she had a missed
drug test on April 16, 2014. She did not inform the Department of her transportation
needs until late April 2014. On May 2, 2014, a scheduled date for a drug test, mother
informed her AADAP counselor and the social worker that she did not want to participate
in AADAP anymore. The social worker perceived that mother was overwhelmed by her
6
programs. As assessed by the Department, mother did not understand the serious nature
of the dependency case, and she had failed to be fully forthcoming with information.
Detention
On May 22, 2014, mother tested positive for cocaine.4 About a week later, a
social worker visited mother’s home. The home was dirty and unkempt. When
confronted with the test result, mother said it had to be a mistake. Nonetheless, she said
she was willing to enter an in-patient program, and that she wanted the minors placed
with her in the in-patient facility. There was an unidentified woman present, and she
appeared to be staying in the home. The minors were detained and released to Denise B.
Father had no objection. George agreed that he would not reside with Denise B. while
she had custody.
The Department filed a petition pursuant to section 387. It stated that the
“previous disposition has not been effective in the protection of” the minors and that
mother “has a history of illicit drug abuse and is a current abuser of cocaine[,] which
renders [her] incapable of providing regular care for the [minors]. On [May 22, 2014],
[mother] had a positive toxicology screen for cocaine. [Mother’s] use of illicit drugs
endangers the [minors’] physical health and safety and creates a detrimental home
environment, placing the [minors] as risk of” harm. The petition recommended that the
minors be placed with a relative.
At the June 3, 2014, detention hearing, the juvenile court found that there was
substantial danger to the physical or emotional health of the minors, and there was no
reasonable means to protect them without removal. The juvenile court ordered the
minors detained with Denise B.
The July 7, 2014, report and hearing
In advance of the July 7, 2014, hearing, the Department submitted a report
indicating that mother had tested positive for cocaine on May 2, 2014, May 7, 2014,
May 22, 2014, and June 24, 2014. On May 30, 2014, and June 3, 2014, she was a no
4
The Department learned of this dirty test in May 2014. It would learn in June
2014 that mother tested positive for cocaine on May 2, 2014, and May 7, 2014.
7
show for her drug tests. She had a clean test on June 13, 2014. Mother refused to enter
an in-patient program because it would be an admission of guilt. Though she was
participating in AADAP, she reported that she was not receiving individual therapy or
mental health services.
Mother’s AADAP counselor stated that mother “presently appears to be struggling
with addiction.” On July 2, 2014, mother was asked about her positive drug tests. She
denied that she had been using drugs. She stated that she tested positive because her
boyfriend was a user of cocaine and she had either touched him or had unprotected sex
with him. Also, she said she had helped him “bag up cocaine” because he said he would
pay her.
The Department’s report averred that mother’s “substance abuse seriously impairs
her ability to provide and care for [the] children.”
At the hearing, the juvenile court asked if there were issues regarding the
allegations in the section 387 petition. Mother’s counsel stated: “No. With regard to the
[section] 387 issue, I’d like to put it all over.” The juvenile court declined, stating, “I’m
not putting it over. That’s why I [send] cases on [section] 387 straight to trial. Normally
there’s no issues and there’s no issues.” At that point, the Department’s counsel
suggested that “we can do the [section] 387, then the parents can set the [section 366.21,
subdivision (e)] for contest because that’s what all of their issues are. They’re all [section
366.21, subdivision (e)] issues. None of them have anything to do with the [section] 387
[petition].”
Mother’s counsel said she was asking to put the matter over because mother was
about to enter a sober living program.
The juvenile court stated: “Let’s sustain the petition and move on then to dispo
and a [section 366.21, subdivision (e) hearing] because both fathers are here . . . and . . .
[¶] . . . [¶] Trailing. [¶] As is mother.”
Mother’s counsel indicated that mother disputed only one line in the section 387
petition. It alleged that mother was under the influence in the presence of the minors.
Counsel stated that the line should be stricken, and that otherwise mother was submitting
8
on the documents. After marking certain reports for identification, the juvenile court
ordered the one line stricken. The petition was sustained as amended. The juvenile court
made a finding by a preponderance of the evidence that mother was “under the influence
and incapable of taking care of” the minors. Then the juvenile court stated: “I’ll put the
matter over for dispo.” A moment later, it stated that it was “going to suitably place the”
minors.
Subsequently, the juvenile court said, “We’ll set a contested [section 366.21,
subdivision (e) hearing] as to all the parents and go over to [August 26, 2014].” The
Department was given the discretion to release Elijah to father and to release Cherish to
George.
Counsel for George asked whether the August 26, 2014, hearing would be for the
section 366.21, subdivision (e) hearing and a disposition on the section 387 petition. The
juvenile court replied: “No. It’s his [section 366.21, subdivision (e) hearing.] Both
fathers [section 366.21, subdivision (e)].”
The August 26, 2014, report and hearing
As reported by the Department, the minors were doing well in the custody of
Denise B. Mother was consistently participating in the AADAP. The AADAP counselor
reported that mother was “motivated and determined to reunify with her children.” She
had five clean drugs tests, she was attending three Narcotics Anonymous meetings per
week, and she obtained a sponsor. She was receiving mental health counseling once a
month, but she had not yet enrolled in individual therapy. According to mother, she
intended to enroll in individual therapy, either through AADAP or Kedren. Mother was
visiting the children twice a week. She appeared appropriate and sober. The Department
recommended continued family reunification services for mother. It noted that she had
remained in “constant contact” with the Department, and she was “actively participating
in her programs and demonstrating progress.” In its assessment, the Department stated
that “the concerns that brought this case to the attention of the [Department] appear to be
in the process of being resolved.”
9
At the hearing, the juvenile court indicated that the matter was on calendar for a
hearing under section 366.21, subdivision (e). It stated that because mother was in partial
compliance with her case plan, the matter would be continued to January 2015 for a
hearing under section 366.21, subdivision (f).
In response, mother’s counsel stated: “She’d be requesting—since we did
continue the dispo of the [section] 387 [petition], her request, today, would be return the
[minors] to her care and that the [juvenile] court find by clear and convincing evidence
there isn’t a risk” if the minors are returned. In the alternative, counsel asked the juvenile
court to grant unmonitored visitation.
The Department’s counsel opined that the section 387 petition was fully resolved
at the July 7, 2014, hearing because the juvenile court suitably placed the minors and set
a section 366.21, subdivision (e) hearing for contest. Also, he opined that it would be a
risk to liberalize mother’s visits.
The juvenile court granted the Department discretion to liberalize and told mother
“[w]e have to be cautious.” She was told: “Make sure you are stable and clean and the
Department will have continued discretion to liberalize.” The matter was continued to
January 6, 2015.
This timely appeal followed.
DISCUSSION
Mother asserts the following: (1) the order sustaining the section 387 petition
should be reversed because there was insufficient evidence that the allegations were true,
and the prior disposition was ineffective to protect the minors; (2) the disposition order
must be reversed because the juvenile court did not make the requisite findings, and
substantial evidence does not support removal of the minors; and (3) the juvenile court
abused its discretion by restricting mother to monitored visits with the minors. These
assertions lack merit.
10
I. The Section 387 Petition.
A. Applicable Law; Standard of Review.
Pursuant to section 387, a county child welfare agency may file a supplemental
petition to change or modify a previous order by removing a child from the physical
custody of a parent. (§ 387, subd. (a).) “The supplemental petition . . . shall contain a
concise statement of facts sufficient to support the conclusion that the previous
disposition has not been effective in the rehabilitation or protection of the child[.]”
(§ 387, subd. (b).)
At the hearing on a section 387 petition, the juvenile court “determines whether
the factual allegations of the supplemental petition are true and whether the previous
disposition has been ineffective in protecting the child. [Citations.] If the court finds the
allegations are true, it conducts a dispositional hearing to determine whether removing
custody is appropriate. [Citations.] A section 387 petition need not allege any new
jurisdictional facts, or urge different or additional grounds for dependency because a
basis for juvenile court jurisdiction already exists. [Citations.]” (In re T.W. (2013) 214
Cal. App. 4th 1154, 1161.)
If the petition seeks removal of a child from a parent, the juvenile court “must
apply one of the applicable standards found in section 361, subdivision (c).” (In re
Javier G. (2006) 137 Cal. App. 4th 453, 462.) Section 361, subdivision (c) provides that a
“dependent child shall not be taken from the physical custody of . . . a parent . . . unless
the juvenile court finds by clear and convincing evidence” that, inter alia, “[t]here 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.” (§ 361, subd.
(c)(1).)
We review the juvenile court’s findings for substantial evidence. (In re T.W.,
supra, 214 Cal.App.4th at p. 1161.) “Evidence is ‘“[s]ubstantial”’ if it is ‘“‘reasonable,
credible, and of solid value.’”’ [Citation.] We do not pass on the credibility of witnesses,
11
attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all
reasonable inferences in support of the findings, view the record in favor of the juvenile
court’s order and affirm the order even if other evidence supports a contrary finding.
[Citations.]” (Id. at pp. 1161–1162.)
B. Invited Error.
At the July 7, 2014, hearing, mother’s counsel stated that there were no issues
regarding the allegations in the section 387 petition. The juvenile court parroted that
there were no issues, and stated that it wanted to sustain the petition. Mother said her
sole dispute was with the allegation that she was under the influence in the presence of
the minors. The juvenile court excised that sentence from the petition. It went on to
sustain the petition as amended, and then stated that it was going to suitably place the
minors. Mother had no objection. Because mother said that the allegations were
undisputed except for a single sentence, she induced the juvenile court to rule without
considering evidence or argument and is therefore barred from complaining about the
juvenile court’s decision by the invited error doctrine. (Norgart v. Upjohn Co. (1999) 21
Cal. 4th 383, 403 [if a party induces the commission of error, she is estopped from
asserting it is grounds for reversal].)
According to mother, the invited error doctrine has no application here because
the remarks by mother’s counsel in advance of the actual adjudication were merely
precatory and therefore did not constitute a concession that the evidence supported any
findings under section 387.
It is true, as mother points out, that a party can submit on a matter without waiving
a challenge to the sufficiency of the evidence. Pivotally, mother’s counsel did more than
simply submit. By saying there were no issues regarding the petition except for one
allegation, she affirmatively did not dispute the following allegations: “The previous
disposition has not been effective in the protection” of the minors, and mother’s “use of
illicit drugs endangers the [minors’] physical health and safety and creates a detrimental
home environment, placing the [minors] as risk of” harm. As a practical matter, the
recommended placement with a relative was an allegation that there would be a
12
substantial danger to the safety or well-being of the minors if returned home. That also
was not disputed.
C. Section 387 Rulings Supported By Substantial Evidence.
As indicated above, mother cannot complain about the juvenile court’s ruling at
the section 387 hearing. Nonetheless, to be complete, we have analyzed mother’s
arguments and find they lack merit.
The record established that Elijah was six years old and Cherish was three years
old at the time of the July 7, 2014, hearing in which they were ordered suitably placed.
The record additionally disclosed, inter alia, mother’s history of mental health problems,
her four positive drug tests, her two no show drug tests, her inability to fully comply with
her prescribed programs until after the minors were detained from her custody, the dirty
and unkempt state of her home in late May, the AADAP counselor’s opinion that mother
was struggling with addiction, mother’s repeated denial of her substance abuse problems,
and mother’s admission that she was dating a cocaine user and helping him “bag up
cocaine.” In light of the tender age of her children, mother’s unresolved substance abuse
problems was, by itself, a sufficient basis for removal. (In re Christopher R. (2014) 225
Cal. App. 4th 1210, 1219 [when a child is six years old or younger, a parent’s substance
abuse establishes jurisdiction under § 300, subd. (b) and grounds for removal of the child
under § 361, subd. (c)]; § 300.2 [“[t]he 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” children].) Mother’s other problems bolster our
conclusion that the trial court did not err.
Mother cites In re Rebecca C. (2014) 228 Cal. App. 4th 720, 727–728, In re
Destiny S. (2012) 210 Cal.App.4th, 999, 1002–1005, In re Rocco M. (1991) 1
Cal. App. 4th 814, 817, 825–826 and other cases for the proposition that mere drug use
does not bring a child within section 300, subdivision (b). Also, we are urged by mother
to compare this case to In re Paul E. (1995) 39 Cal. App. 4th 996 (In re Paul E.). In that
case, the court held that “mere chronic messiness in housekeeping, absent unsanitary
conditions or resulting illness or accident, is not the clear and convincing evidence of a
13
substantial risk of harm to a child which may justify a child’s removal from his or her
parents under section 361.” (In re Paul E., supra, at p. 999.) The court also held that
“the failure of . . . parents to comply completely with the service plan” does not by itself
justify removal under section 361. (In re Paul E., supra, at p. 999.) Mother’s case is
distinguishable from the foregoing cases because it involves a parent of young children
with a substance abuse problem.
The next issue is whether the juvenile court made the required detriment finding
under section 361, subdivision (c).
As mother points out, the juvenile court did not expressly make a section 361,
subdivision (c) finding, i.e., it did not find that there was clear and convincing evidence
that mother’s continued custody of the minors posed a substantial danger of specified
harm. But when a juvenile court does not articulate the standard that it applied, we
presume that it applied the correct standard unless there is an indication to the contrary.
(In re Merrick V. (2004) 122 Cal. App. 4th 235, 254 [the trial court did not articulate
whether it was applying a preponderance or clear and convincing standard when it
terminated a legal guardianship].) On this record, there is no indication that the juvenile
court failed to apply the correct standard.
Pursuant to In re Henry V. (2004) 119 Cal. App. 4th 522, 530 (Henry V.), mother
urges us to refrain from implying the required finding of detriment. We are not
persuaded. Henry V. held that there was insufficient evidence to support removal of a
child, and that it was impossible to determine whether the juvenile court applied the clear
and convincing standard to its dispositional findings. (Id. at p. 525.) Henry V. did not
weigh in on when it is appropriate to imply findings, and cases are not authority for
propositions not considered. (Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60
Cal. 4th 624, 640.)
II. No Abuse of Discretion in the Visitation Order.
Visitation orders are reviewed for an abuse of discretion. (In re Robert L. (1993)
21 Cal. App. 4th 1057, 1067.) Given that there was evidence that mother is an abuser of
cocaine, and that her treatment is ongoing, we cannot conclude that the juvenile court’s
14
order restricting mother to monitored visitation exceeds the bounds of reason. (In re
Stephanie M. (1994) 7 Cal. 4th 295, 318.)
DISPOSITION
The orders and findings are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J.
ASHMANN-GERST
We concur:
_____________________________, P. J.
BOREN
____________________________, J.
CHAVEZ
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