In re Annie B. CA2/7 ( 2015 )

Filed 10/13/15 In re Annie B. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN
In re ANNIE B., B260957
a Person Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. CK39716)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
CHRISTOPHER B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Philip L.
Soto, Judge. Affirmed in part and reversed in part.
Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mark J. Saladino, County Counsel, Mary C. Wickham, Interim County Counsel,
Richard D. Weiss, Chief Deputy County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and David Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Christopher B., the presumed father of 11-month-old Annie B., appeals from the
juvenile court’s jurisdictional findings and disposition order declaring his daughter, who
was born with a positive toxicology screen for methadone and suffered methadone
withdrawal symptoms, a dependent of the court pursuant to Welfare and Institutions
Code section 300, subdivision (b),1 and placing the child with him under the supervision
of the Los Angeles County Department of Children and Family Services (Department),
with family maintenance services, on condition he reside with Annie’s paternal
grandmother. At the time of Annie’s birth, Christopher and Annie’s mother, Julie B.,
were lawfully using methadone under a doctor’s supervision to treat their Vicodin
addiction. Christopher contends neither current use of legally prescribed methadone nor
his and Julie’s history of substance abuse constituted sufficient evidence to justify the
juvenile court’s exercise of jurisdiction over Annie. He also contends, even if
jurisdiction was proper based on Julie’s use of methadone during her pregnancy and her
past abuse of opiates and methamphetamine, the juvenile court abused its discretion in
ordering the child be placed with him under the Department’s supervision, rather than
terminating its jurisdiction with a family law custody order. We agree the evidence was
insufficient to sustain the allegations in the section 300 petition concerning Christopher
but otherwise affirm the findings and orders of the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
A. Julie’s Prior Involvement with the Dependency System
Julie has acknowledged a more than 20-year history of illicit drug use including
opiates and methamphetamine and has lost custody of two children through the
1 Statutory references are to the Welfare and Institutions Code.
2
dependency system during that time. In May 2000, the juvenile court sustained a petition
under section 300, subdivision (b), concerning her 18-month-old son, finding her “use of
drugs place[d] the minor Conor at risk of harm and create[d] a detrimental home
environment.” (The Department initiated the case after Julie, then homeless, left three-
month-old Conor in a bar.) The juvenile court declared Conor a dependent of the court,
removed him from the custody and care of Julie and his father (not Christopher), who
was incarcerated, and placed Conor with a paternal aunt. The juvenile court returned
Conor to Julie approximately one year later, and terminated its jurisdiction in November
2001.
The Department filed a second dependency petition in January 2008 relating to
Conor and his four-month-old half brother Charlie based on allegations of domestic
violence between Julie and Charlie’s father (not Christopher). In addition, the juvenile
court found Julie had been using methamphetamine and again sustained allegations under
section 300, subdivision (b), regarding her drug use. Thereafter, Julie was not compliant
with court-ordered services. In March 2009, the juvenile court terminated jurisdiction as
to Charlie, and awarded his father sole legal and physical custody. A year later, in March
2010, the juvenile court terminated parental rights of Julie and Conor’s father, and
Conor’s paternal aunt adopted him.
B. Annie’s Birth with a Positive Toxicology Screen for Methadone
Annie was born in early October 2014 with a positive toxicology screen for
methadone and was suffering withdrawal symptoms. Julie also tested positive for
methadone at the time of Annie’s birth. Annie spent several weeks in the hospital while
her withdrawal symptoms were treated with morphine.
Two days after Annie’s birth, the Department received a referral regarding the
newborn. A children’s social worker interviewed Julie, Christopher, and Annie’s
paternal grandmother. Julie explained she used methadone as a means of withdrawing
from Vicodin, which had initially been prescribed for her four years earlier to treat her
fibromyalgia. The methadone treatment was administered through the Aegis Treatment
3
Centers (Treatment Center) in Simi Valley. Julie reported she had stopped using opiates
when she learned she was pregnant, sometime in January or February 2014. She said she
had been seen by a doctor for prenatal care in New York when she was 11 weeks
pregnant and then again starting two weeks prior to Annie’s birth in Los Angeles.
Although Julie was seen by a physician through the Treatment Center, the clinic did not
provide prenatal care.
C. The Section 300 Petition
The Department filed a section 300 petition on behalf of Annie on October 29,
2014. The petition alleged pursuant to subdivision (b)2 of that section that Annie was
born with a positive toxicology screen for methadone and was hospitalized and received
treatment due to withdrawal as a result of unreasonable acts by her mother, who had a
positive toxicology screen for methadone at the child’s birth. It further alleged, “The
child’s father Christopher B[.] knew of the child’s mother’s illicit drug use and failed to
take action to protect the child. Further, the child’s mother’s use of illicit drugs and the
father’s failure to protect the child endanger the child’s physical health and safety,
placing the child at risk of physical harm, damage and danger.” (Count b-1.)
In a separate count under section 300, subdivision (b), and a parallel count under
subdivision (j) (abuse of sibling), the Department alleged Julie had a 20-year history of
2 Section 300, subdivision (b)(1), provides in pertinent part:
“Any child who comes within any of the following descriptions is within the
jurisdiction of the juvenile court which may adjudge that person to be a dependent child
of the court: [¶] . . . [¶] . . . 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 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, or by the
willful or negligent failure of the parent or guardian to provide the child with adequate
food, clothing, shelter, or medical treatment, 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.”
4
illicit drug use including opiates and methamphetamine that rendered her incapable of
providing Annie with regular care and supervision and had used opiates and methadone
during her pregnancy. In addition, the count alleged Annie’s sibling Conor had received
permanent placement services due to Julie’s substance abuse. (Counts b-2 and j-1.)
Finally, again pursuant to section 300, subdivision (b), the petition separately
alleged Christopher had a history of substance abuse including hydrocodone and
methadone and “is a current abuser of methadone which renders the father incapable of
providing the child with regular care and supervision.” Christopher’s “substance abuse,”
according to the count, “endangers the child’s physical health and safety, placing the
child at risk of physical harm, damage and danger.” (Count b-3.)
D. The Juvenile Court’s Findings and Orders
At the detention hearing, after finding Christopher to be Annie’s presumed father,
the juvenile court found the Department had established a prima facie case to detain
Annie from Julie. The juvenile court ordered Annie placed in the custody of Christopher
upon her release from the hospital on condition Christopher continue to live with Annie’s
paternal grandmother, stay in his program and maintain his sobriety. The juvenile court
ordered monitored visitation for Julie with discretion in the Department to liberalize the
visits. The juvenile court also ordered the Department to consider developing a section
301 contract3 with the family, as well as closure of the case with a family law custody
order.
In its jurisdiction/disposition report for the December 12, 2014 hearing, the
Department stated Annie was residing with Christopher in the paternal grandmother’s
home, was doing well medically, appeared to have no serious ongoing effects from her
prenatal exposure to methadone and was developing at a rate normal for a two-month-old
infant. The Department also reported, “Father is providing care for the child and mother
3 A section 301 contract is a program of informal supervision for a family in lieu of
a formal finding of dependency and juvenile court supervision.
5
is coming to the home on a daily basis to assist father with this care and supervision.
Both parents appear to be strongly bonded to the child and the paternal grandmother has
indicated that the parents have been appropriate with the child at all times. At this time it
would appear that this home is safe for the child and there are no issues or detriments in
his home.”
With respect to the allegations in the petition, the Department reported Julie
acknowledged in interviews she had an ongoing problem with the use and abuse of drugs
including opiates and methamphetamine, which had led to the loss of her two older
children. The records obtained by the Department indicated Julie has an extensive drug-
related criminal history, including most recently a conviction for possession of a
controlled substance in June 2013.
Julie explained she began methadone treatment to deal with her Vicodin addiction
prior to the birth of Annie and insisted she was committed to living a drug-free life and
providing all necessary care for her daughter. Julie was aware Annie would test positive
for methadone at birth, but was under a doctor’s care throughout the methadone treatment
program and had been told by medical personnel the child would not be adversely
affected by her use of methadone. The Department’s report attached a letter from Lital
Shvarts, Psy. D., clinical manager at the Treatment Center, which described the clinic as
an outpatient facility specializing in treatment of opiate dependence. Dr. Shvarts’s letter
stated Julie was currently enrolled in an outpatient methadone maintenance treatment
program, which she began on July 22, 2014, and confirmed she “was treated with the
recommended dose for pregnancy” as prescribed by the program’s physician. The letter
noted that Julie was required to be seen daily for medication services and once weekly for
individual counseling services. It concluded by stating, “It is recommended that [Julie]
continue with treatment and gradually taper off the methadone.”
For his part, Christopher told the Department’s social worker he was aware Julie
had been using methadone under a doctor’s supervision to treat her Vicodin addiction.
Both he and Julie had been told there would be no negative effects to the child as a result
of this treatment. Christopher acknowledged that he, too, had been addicted to Vicodin
6
used for back pain and was currently being treated under a doctor’s supervision at the
Treatment Center in a methadone program.
In his evaluation of the family’s current situation, the Department’s social worker
noted both parents have lengthy drug histories and have only recently begun to address
those issues. The social worker also observed that Julie and Christopher “seem to be
committed to turning their lives around” and “the parent[s’] age also provides some hope
that they have now matured to a point where they understand their past mistakes and how
these mistakes have negatively affected themselves and those around them.” The report
recommended Annie be made a dependent child of the juvenile court, explaining the
Department “believes that this family would continue to benefit from both [Department]
and court services as they continue to care for this very young child and deal with their
longstanding drug issues.”
The juvenile court received the Department’s reports at the jurisdiction and
disposition hearing; no additional evidence was submitted. Christopher argued for
dismissal of the petition in its entirety or, at least, that the allegations concerning him
(part of count b-1 and all of b-3) be dismissed, contending his past history of substance
abuse was not a ground for jurisdiction and his current use of methadone was pursuant to
a doctor-supervised treatment plan. He was employed as a bail bonds agent and was
providing appropriate care for Annie, who had been in his custody since her discharge
from the hospital. Julie’s counsel joined in Christopher’s arguments; Annie’s counsel
urged the juvenile court to sustain the section 300 petition and declare the child a
dependent of the court.
With respect to disposition, because the juvenile court had indicated it was
inclined to deny services to Julie, as recommended by the Department, Christopher asked
that the case be terminated with a family law custody order for him. He contended he
was already in a program through the Treatment Center, receiving counseling and drug
treatment services, and, therefore, additional court-ordered services were unnecessary.
Alternatively, he asked that the juvenile court issue a home-of-parents order allowing
both parents to retain custody of Annie under the Department’s supervision.
7
The juvenile court sustained the section 300, subdivision (b), allegations in the
petition regarding both Julie and Christopher and declared Annie a dependent of the
court.4 The juvenile court removed Annie from Julie’s custody, placed her with
Christopher on condition he continue to reside with the paternal grandmother, ordered
family maintenance services for Christopher and denied services to Julie pursuant to
section 361.5, subdivision (b)(10). Julie’s visitation was to continue to be monitored
except for visits in placement if the paternal grandmother was in the home.
At the six-month review hearing (§ 364) on June 11, 2015, the juvenile court
terminated its earlier home-of-father order (and with it the condition that Annie and
Christopher reside in the home of her paternal grandmother) and ordered Annie placed in
the home of both parents under the supervision of the Department.5 The juvenile court
ordered the Department to provide both Christopher and Julie with family maintenance
services. The next review hearing is scheduled for December 10, 2015.
DISCUSSION
A. The Governing Statute and Standard of Review for Jurisdictional Findings
Through the dependency law, the Legislature intended “to provide maximum
safety and protection for children who are currently being physically, sexually, or
emotionally abused, being neglected, or being exploited, 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 has expressed that “[t]he provision of a home
4 The court apparently overlooked the additional allegations under section 300,
subdivision (j), which, as discussed, simply repeated count b-2 as to Julie; it neither
sustained nor dismissed those allegations.
5 We granted the Department’s unopposed request to take judicial notice of this
order.
8
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.” (Ibid.)
A child may be declared a dependent of the juvenile court when that child is
described by section 300. A child falling within subdivision (b)(1) of that section is one
who “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 . . . to adequately
supervise or protect the child, . . . or by the inability of the parent . . . to provide regular
care for the child due to the parent’s . . . substance abuse. . . .” (§ 300, subd. (b)(1).) A
true finding under subdivision (b)(1) requires the Department to demonstrate “(1)
neglectful conduct by the parent in one of the specified forms; (2) causation; and (3)
‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or
illness.” (In re Rocco M. (1991) 1 Cal. App. 4th 814, 820.)
“Subdivision (b) means what it says. Before courts and agencies can exert
jurisdiction under section 300, subdivision (b), there must be evidence indicating that the
child is exposed to a substantial risk of serious physical harm or illness.” (In re Rocco
M., supra, 1 Cal.App.4th at p. 823.)
“Although section 300 generally requires proof the child is subject to the defined
risk of harm at the time of the jurisdiction hearing (In re Savannah M. (2005) 131
Cal. App. 4th 1387, 1396 . . . ; In re Rocco M.[, supra,] 1 Cal.App.4th [at p.] 824), the
court need not wait until a child is seriously abused or injured to assume jurisdiction and
take steps necessary to protect the child (In re N.M. (2011) 197 Cal. App. 4th 159,
165 . . .). “The court may consider past events in deciding whether a child presently
needs the court’s protection. (Ibid.) A parent’s ‘“[p]ast conduct may be probative of
current conditions” if there is reason to believe that the conduct will continue.’ (In re
S.O. (2002) 103 Cal. App. 4th 453, 461 . . . .)” (In re Christopher R. (2014) 225
Cal. App. 4th 1210, 1215-1216.)
“In a challenge to the sufficiency of the evidence to support a jurisdictional
finding, the issue is whether there is evidence, contradicted or uncontradicted, to support
the finding. In making that determination, the reviewing court reviews the record in the
9
light most favorable to the challenged order, resolving conflicts in the evidence in favor
of that order, and giving the evidence reasonable inferences. Weighing evidence,
assessing credibility, and resolving conflicts in evidence . . . are the domain of the trial
court, not the reviewing court.” (In re Alexis E. (2009) 171 Cal. App. 4th 438, 451.)
B. Substantial Evidence Supports the Jurisdictional Findings as to Julie
Julie has a significant substance abuse history including drug-related arrests and
convictions. Although she made efforts to treat her addiction after she learned she was
pregnant through participation in a methadone program, that continued drug use, even if
otherwise lawful, endangered her child, who not only tested positive for methadone but
also experienced withdrawal symptoms for several weeks. In addition, while Julie’s use
of methadone was apparently supervised by a physician who opined the dosage being
administered was safe for her unborn child, the record reflects she failed to obtain
prenatal care while using methadone until the final two weeks of her pregnancy. This
evidence fully supports the juvenile court’s findings that Julie’s past and current drug use
justified the exercise of dependency jurisdiction over Annie.
Relying primarily on In re Drake M. (2012) 211 Cal. App. 4th 754, Christopher
argues Julie’s lawful use of methadone is drug use, not drug abuse, and, standing alone,
cannot support a jurisdiction finding. (See id. at p. 764 [“without more, the mere usage
of drugs by a parent is not a sufficient basis on which dependency jurisdiction can be
found”].) But this is hardly a case of “without more.” Julie is not using medical
marijuana, as was the father in Drake M. She is addicted to opiates and apparently has
been for many years. She has switched, at least for now, from Vicodin6 to prescribed
synthetic opiates (methadone) as part of a drug addiction detoxification program. But she
6 Julie told the Department a doctor prescribed Vicodin for her four years ago. She
also told the Department she did not have the contact information for the doctor. It is
unclear how Julie was obtaining Vicodin given that the medication was prescribed years
ago.
10
remained addicted; no gradual tapering off had occurred as of the date of the jurisdiction
hearing. And that addiction and continued drug use caused substantial harm to her child,
conduct plainly falling within the ambit of section 300, subdivision (b).
Moreover, Julie’s addiction and ongoing use of opiates easily satisfies the
definition of “substance abuse” in the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders (4th rev. ed. 2000) (DSM-IV-TR), which the
Drake M. court found persuasive (In re Drake M., supra, 211 Cal.App.4th at p. 766), as
well as the more recent and more broadly defined classification of “‘substance use
disorders,’” which combines substance abuse and dependence, in the Diagnostic and
Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), which this court
discussed in In re Christopher R., supra, 225 Cal.App.4th at page 1218, footnote 6.
Notwithstanding the loss of her two older children because of her use of controlled
substances and her conviction in mid-2013 of a drug-related offense, Julie continued to
use/abuse opiates until she became pregnant with Annie and then, rather than elect other
possible forms of treatment, entered a methadone program. This plainly constitutes
“‘continued substance use despite having persistent or recurrent social or interpersonal
problems caused or exacerbated by the effects of the substance . . . .’ (DSM-IV-TR,
p. 199.)” (In re Drake M., supra, at p. 766.) Additionally, it is reasonable to infer from
Julie’s history and self-reported “very bad withdrawals” when she tried to stop using
opiates on her own, that she experienced cravings to use the substance, engaged in
persistent use despite the knowledge that it caused physical or psychological problems,
suffered withdrawal symptoms and, because of substance use, she failed to fulfill major
role obligations, qualifying as at least a moderate substance use disorder under DSM-5.
(See In re Christopher R., supra, at p. 1218, fn. 6.)
C. The Evidence Is Insufficient To Support the Jurisdictional Findings as to
Christopher
Christopher contends no evidence was presented to the juvenile court he in any
meaningful way “failed to take action to protect the child” from Julie’s medically
11
prescribed use of methadone or that his own history of substance abuse or current
methadone treatment endangered Annie’s physical health or safety. We agree. Although
dependency jurisdiction over Annie is justified, Christopher is a nonoffending parent.7
1. Failure to Protect
The Department alleged in count b-1 of the petition that Christopher failed to
protect Annie prior to her birth. The Department argues Christopher “failed to ensure
[Julie] received prenatal care,” “showed no concern about Annie’s well-being,” and
“appeared to have no knowledge of [Julie] attending substance abuse treatment programs,
narcotics anonymous meetings, or about Annie’s prenatal care.” Relying on In re J.C.
(2015) 233 Cal. App. 4th 1, 6, the Department asserts Christopher’s “knowledge of
[Julie’s] drug use and drug-related history, and his failure to protect his unborn child,
supported jurisdiction.”
7 “[A] jurisdictional finding good against one parent is good against both. More
accurately, the minor is a dependent if the actions of either parent bring her within one of
the statutory definitions of a dependent. [Citations.] This accords with the purpose of a
dependency proceeding, which is to protect the child, rather than prosecute the parent.
[Citation.]” (In re Alysha S. (1996) 51 Cal. App. 4th 393, 397; accord, In re I.A. (2011)
201 Cal. App. 4th 1484, 1491; see In re Alexis H. (2005) 132 Cal. App. 4th 11, 16.)
Accordingly, the findings relating to Julie provide sufficient grounds for affirming the
declaration of dependency as to Annie. (See In re I.A., supra, at p. 1491 [“[a]s a result of
this focus on the child, it is necessary only for the court to find that one parent’s conduct
has created circumstances triggering [§] 300 for the court to assert jurisdiction over the
child”]; In re P.A. (2007) 155 Cal. App. 4th 1197, 1212.) Nonetheless, we agree with
Christopher’s argument the challenged jurisdictional findings relating to him may have
adverse consequences in this or subsequent proceedings and, therefore, consider the
merits of his appeal of those findings: “[W]e generally will exercise our discretion and
reach the merits of a challenge to any jurisdictional finding when the finding (1) serves as
the basis for dispositional orders that are also challenged on appeal [citation]; (2) could
be prejudicial to the appellant or could potentially impact the current or future
dependency proceedings [citations]; or (3) ‘could have other consequences for [the
appellant], beyond jurisdiction’ [citation].” (In re Drake M., supra, 211 Cal.App.4th at
pp. 762-763; see In re I.C. (2015) 239 Cal. App. 4th 304, 310-311; In re Quentin H. (2014)
230 Cal. App. 4th 608, 613.)
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With regard to Christopher’s alleged failure to ensure prenatal care, there is little
in the record concerning Julie’s prenatal care other than her lack of it. There is nothing in
the evidence suggesting Christopher’s actions prevented Julie from obtaining prenatal
care, or that he otherwise encouraged Julie to avoid such care. (Cf. In re J.C., supra, 233
Cal.App.4th at p. 5.) In fact, there was some evidence Christopher was actually
supportive of Julie’s minimal prenatal care efforts because he attended two prenatal care
visits with her.8
The evidence also does not support the Department’s claim Christopher had no
concern for Annie’s well being such that Annie was at risk of serious physical harm
because of it. Christopher believed Julie was “trying her best” and had gone to the clinic
because she was pregnant. Christopher reported Julie was attending Narcotics
Anonymous meetings and a drug treatment program. Christopher knew that Julie’s
methadone use was medically supervised and Julie “had been under the care and
supervision of a doctor the entire time.” Christopher’s defensive and poorly-phrased
statement Annie’s withdrawal was “normal” and “not a big deal” was related to
Christopher’s expectations from medical staff at the Treatment Center. Christopher had
been informed by the Treatment Center that Annie would test positive for methadone, but
there would “be no negative effects to the child.”
The Department’s reliance on In re J.C., supra, 233 Cal. App. 4th 1 as support for
jurisdiction based on Christopher’s conduct for his alleged failure to protect is misplaced.
In re J.C. addressed whether jurisdiction as to a father could be sustained because he
failed to protect his child from a mother’s drug use during her pregnancy. Division Eight
of this court answered in the affirmative where “instead of taking steps to stop mother’s
drug use,” a “father instead abetted and encouraged” the drug use. (Ibid.) A father abets
and encourages where he actively engages in drug use with a mother during her
pregnancy. (Ibid.)
8 As Julie had only two weeks of prenatal care, it appears Christopher may have
attended most, if not all, of Julie’s prenatal care visits.
13
These circumstances are distinctly different from those of In re J.C. Here,
Christopher did not abet and encourage Julie to use illicit drugs. He did the opposite.
Christopher and Julie both were actively involved in addressing their Vicodin
dependency issues through their medically supervised use of methadone. Julie sought
methadone treatment on a physician’s recommendation after learning she was pregnant.
Christopher thought Julie was “trying her best” and was legitimately addressing her
substance abuse issues. Christopher had been advised “there would be no negative
effects to the child in regards to [Julie’s] use of methadone.”
Christopher’s acts are not consistent with a failure to protect Annie prior to her
birth. His prenatal actions do not support a finding that he caused serious physical harm
or illness to Annie or that he put her at substantial risk of such harm or illness. The
juvenile court’s jurisdictional finding that Christopher “knew of [Julie’s] illicit drug use
and failed to take action to protect the child” is not supported by substantial evidence.
(Count b-1.)
2. Substance Abuse
In count b-3, the petition alleged Christopher had a history of substance abuse,
was a “current abuser of methadone,” and “incapable of providing [Annie] with regular
care and supervision.” The Department argues the juvenile court’s jurisdictional findings
as to Christopher were supported by substantial evidence because Christopher “admitted
he started using Vicodin to treat back pain and was now under methadone treatment
because he was trying to stop his addiction and wean himself off of the drug.” The
Department’s assertion, however, does not address evidence supporting how
Christopher’s medically-supervised use of methadone exposes Annie to risk of serious
harm or illness because of his inability to supervise, protect or care for Annie as required
by section 300, subdivision (b)(1).
To be sure, the record establishes that Christopher was a user of methadone.
There is a dearth of evidence in the record, however, concerning anything specific about
Christopher and his use of methadone or how he allegedly abused it. The only evidence
14
of Christopher’s methadone use came directly from Julie and Christopher. They both
admitted that Christopher became addicted to Vicodin after taking it for back pain, and he
was participating in a medically-supervised methadone program to eliminate his Vicodin
dependency issues. The plan, according to Christopher, was to gradually reduce his level
of methadone until he no longer needed it.
The Department did not present any other evidence concerning methadone
generally and Christopher’s use of it. While the Department submitted letters from the
program about Julie’s participation in the program, it did not present any such evidence
concerning Christopher. The Department did not interview or speak to anyone at the
program about Christopher’s participation. There is nothing in the record explaining the
effect of methadone on Christopher. The juvenile court had no evidence concerning the
program at Treatment Center generally, its requirements, the extent and quality of
Christopher’s participation in treatment, and the amount of methadone Christopher was
prescribed and currently using.
Substantial evidence does not support the juvenile court’s finding Christopher
“was a current abuser of methadone.” To meet its burden of proving Christopher had a
substance abuse problem, the Department could have relied on (1) evidence from a
“medical professional” that Christopher “had been diagnosed as having a current
substance abuse problem” (see In re Drake M., supra, 211 Cal.App.4th at p. 766); (2) the
factors set forth in the DSM-IV-TR9 defining substance abuse or those defining substance
9 “The full definition of ‘substance abuse’ found in the DSM-IV-TR describes the
condition as “[a] maladaptive pattern of substance use leading to clinically significant
impairment or distress, as manifested by one (or more) of the following, occurring within
a 12-month period: [¶] (1) recurrent substance use resulting in a failure to fulfill major
role obligations at work, school, or home (e.g., repeated absences or poor work
performance related to substance use; substance-related absences, suspensions, or
expulsions from school; neglect of children or household)[; ¶] (2) recurrent substance use
in situations in which it is physically hazardous (e.g., driving an automobile or operating
a machine when impaired by substance use)[; ¶] (3) recurrent substance-related legal
problems (e.g., arrests for substance-related disorderly conduct)[; and ¶] (4) continued
substance use despite having persistent or recurrent social or interpersonal problems
15
abuse disorder in the more recently published DSM-510 (In re Drake M., supra, at p. 766;
In re Christopher R., supra, 225 Cal.App.4th at p. 1218, fn. 6); or (3) evidence of
ongoing drug use resulting in an inability to supervise or protect Annie thereby placing
her at substantial risk of harm (In re J.N. (2010) 181 Cal. App. 4th 1010, 1025). The
Department, however, did not pursue any of those options.
The Department did not present any evidence concerning Christopher that related
to the DSM-IV-TR factors. Nothing in the record supports a finding Christopher failed to
fulfill his work or home obligations. There was no evidence Christopher engaged in
physically dangerous activities while under the influence of drugs. Christopher’s
criminal record did not reveal substance-related legal problems. Finally, nothing
suggested Christopher had social or interpersonal problems caused by drug use.
The lack of evidence related to Christopher and the DSM-5 factors was similar.
The Department did not present any evidence Christopher presently suffered from
cravings or an intense desire to use drugs as the Department presented no specific
information about Christopher’s ongoing treatment. Nothing suggested Christopher spent
large amounts of time getting, using or recovering from his use of methadone or that he
was failing at any of his obligations.
Additionally, the Department did not present any evidence suggesting Annie was
at risk of substantial harm because of an inability to supervise, protect or care for the
caused or exacerbated by the effects of the substance (e.g., arguments with spouse about
consequences of intoxication, physical fights).’ (DSM-IV-TR, p. 199.)” (In re Drake M.,
supra, 211 Cal.App.4th at p. 766.)
10 In In re Christopher R., supra, 225 Cal.App.4th at page 1218, footnote 6, we
explained the more broad “‘substance use disorders’” defined in the DSM-5: “DSM-5
identifies 11 relevant criteria, including cravings and urges to use the substance; spending
a lot of time getting, using, or recovering from use of the substance; giving up important
social, occupational or recreational activities because of substance use; and not managing
to do what one should at work, home or school because of substance use. The presence
of two or three of the 11 specified criteria indicates a mild substance use disorder; four or
five indicate a moderate substance use disorder; and six or more a severe substance use
disorder. [Citation.]”
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child because of Christopher’s use of methadone.11 In fact, the evidence established that
Christopher functioned quite well and was able to properly care for Annie even with his
medically-supervised use of methadone. The Department never detained or requested the
juvenile court remove Annie from Christopher’s care. Annie was released from the
hospital into Christopher’s care in the paternal grandmother’s home as recommended by
the Department in its detention report. The Department informed the juvenile court
Christopher was providing care for Annie and he had been appropriate with her. Annie
was bonded to Christopher. The Department assessed Christopher’s home as “safe” for
Annie with “no issues or detriments in his home.”12 According to the Department,
Christopher’s care of Annie “appear[ed] to be working well for the parties involved.”
The juvenile court had no evidence before it that Christopher was currently a
substance abuser as alleged in the petition. The Department did not present medical
testimony on the issue or any other evidence that would support the juvenile court’s
jurisdictional finding that Christopher “is a current abuser of methadone.” The
Department also presented no evidence that Christopher was unable or incapable of
providing care for Annie because of his use of methadone. Accordingly, the juvenile
court’s finding to the contrary is not supported by substantial evidence and must be
reversed. (Count b-3.)
D. The Court’s Retention of Dependency Jurisdiction While Christopher Received
Services Was Not an Abuse of Discretion
Christopher argues that even assuming there was substantial evidence to support
the juvenile court’s jurisdiction based only on Julie’s substance abuse issues, “the
11 As it did not establish Christopher was a substance abuser, the Department cannot
rely on Annie’s “‘tender years’” as prima facie evidence Christopher was unable to care
for Annie. (See In re Drake M., supra, 211 Cal.App.4th at p. 767.)
12 Christopher and Annie were then residing in the home of the paternal
grandmother.
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juvenile court abused its discretion in failing to terminate jurisdiction with a family law
custody order at disposition.” Christopher correctly notes section 362.4 allows the
juvenile court to terminate its jurisdiction “over a minor who has been adjudged a
dependent child of the juvenile court” and to issue “an order determining the custody of,
or visitation with, the child.” (§ 362.4.)
“The juvenile court has an equitable duty to protect the welfare of the children
within its jurisdiction. [Citation.] By 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.’” (In re I.G. (2014) 226 Cal. App. 4th 380, 386, quoting Welf. & Inst. Code,
§ 300.2.)
“‘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. [Citations.] The court’s determination in this regard will not be reversed
absent a clear abuse of discretion. [Citation.]’” (In re Neil D. (2007) 155 Cal. App. 4th
219, 225, quoting In re Jose M. (1988) 206 Cal. App. 3d 1098, 1103-1104.) “A court
exceeds the limits of legal discretion if its determination is arbitrary, capricious or
patently absurd.” (In re N.M., supra, 197 Cal.App.4th at p. 171.) The test for an abuse of
discretion is whether the juvenile court’s order exceeded the bounds of reason. (In re
Alexandria M. (2007) 156 Cal. App. 4th 1088, 1095-1096.)
At the time of disposition, the juvenile court expressed its concerns that Julie and
Christopher had not resolved their drug dependency issues and that their treatment was
ongoing. The court noted, “just because they are in programs doesn’t mean the risk has
been eliminated.” Julie and Christopher’s ongoing drug treatment, the possibility of
relapse, and Annie’s age, the juvenile court reasoned, were grounds for ongoing juvenile
court supervision.
At the time of the disposition hearing, Annie was only two months old. The
juvenile court was well within its discretion when it made a disposition order placing
Annie in Christopher’s care under the Department’s supervision. While Julie and
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Christopher were addressing their issues in their program, neither Julie nor Christopher
had completed the program. Despite their commitment to completing the program, the
juvenile court recognized the possibility of relapse.
The juvenile court’s concerns were well supported by the facts. Julie had a long
established and significant history of substance abuse. She had lost her two older
children through the dependency system because of her substance abuse issue. Julie did
not begin her treatment program until July 22, 2014, less than three months before Annie
was born. While Julie voiced a commitment to treatment, her relatively brief period of
medically-supervised use of methadone did not eliminate the potential risk of harm to
Annie.
The juvenile court’s concerns about Christopher were similarly justified.
Christopher had admitted his Vicodin dependency issues and had sought methadone as a
way to eliminate his dependence on the drug. While Christopher argues he had enrolled
in programs he needed for his rehabilitation, he had not completed the programs. His
treatment was ongoing. That Christopher had enrolled in a substance abuse treatment
program and was participating in it did not eliminate the risk of potential harm to two-
month-old Annie.
Moreover, Julie and Christopher were an extant couple. They lived together and
planned to live with Annie as a family. Christopher told the Department he wanted “to
be left alone so [he and Julie] can move forward with ‘their lives and the baby.’” Any
disposition ordered by the juvenile court had to consider and account for Julie and
Christopher’s circumstances as a family unit.
Given the juvenile court’s justifiable concern about Julie’s contact with two-
month-old Annie as well as Julie and Christopher’s need for ongoing treatment, its
decision not to terminate jurisdiction with a family law custody order in favor of
Christopher was well reasoned and appropriate. A family law custody order would not
have resulted in any kind of oversight of Annie’s placement. Enforcement of such an
order would require Christopher to take action in family court assuming he had the
motivation to do so. There would have been no social worker or juvenile court
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involvement to ensure Julie and Christopher remained on track with their treatment and
were actively eliminating the conditions that led to Annie’s dependency. (§ 362,
subd. (d).) Most significantly, nothing would have been in place to protect Annie if her
parents decided not to abide by the terms of the family law custody order or complete
their treatment. Under these circumstances, there was nothing arbitrary, capricious or
patently absurd in the juvenile court making an order placing Annie in Christopher’s care
under the Department’s supervision.
DISPOSITION
The jurisdictional findings as to Christopher are reversed. In all other respects the
juvenile court’s findings and disposition order are affirmed.
BECKLOFF, J.*
We concur:
ZELON, Acting P. J.
SEGAL, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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