In re N v. CA3 ( 2015 )

Filed 9/21/15 In re N.V. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re N.V., a Person Coming Under the Juvenile Court C078410
Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. No. JD235314)
HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
J.V.,
Defendant and Appellant.
Mother, J.V., appeals from the juvenile court’s dispositional orders removing the
minor from her care. (Welf. & Inst. Code, §§ 300, 361, 395.)1 She contends the juvenile
court improperly considered extraneous evidence, to her prejudice, and that there were
reasonable alternatives to removal.
We affirm.
1 Further undesignated statutory references are to the Welfare and Institutions Code.
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FACTUAL AND PROCEDURAL BACKGROUND
The Petition
On October 27, 2014, the Department of Health and Human Services (DHHS)
filed section 300 petition on behalf of newborn N.V., alleging that mother had an
untreated substance abuse problem from which she had failed and/or refused to
rehabilitate which impaired her judgment and ability to care for the minor, and placed
him at substantial risk of harm, abuse, or neglect. The petition alleged mother and the
minor had tested positive for methamphetamine and amphetamine at the time of the
minor’s birth, and that mother had been advised not to breast-feed but did so anyway
against medical advice. It also alleged that mother had a history of drinking excessive
amounts of alcohol and regularly drank alcohol after she knew she had become pregnant.
Information from the Detention Report
According to the detention report, after birth, the minor tested positive for
methamphetamine and amphetamine and mother had displayed odd behavior, was jittery
and uncooperative. Yet, she adamantly denied using drugs. The doctor had instructed
her not to breastfeed, but she did so anyway, stating she was not an addict. Confronted
with her test results, she claimed she must have eaten something “laced” with drugs. She
admitted using drugs in the past, but denied a current substance abuse problem. She
claimed to have no knowledge of how she tested positive for methamphetamine during a
2009 prenatal appointment when she was previously pregnant. And she refused to
acknowledge that pregnancy (which had eventually resulted in a miscarriage), instead
stating that “ ‘something came out of her.’ ”
Mother identified N.V.’s father as “Dean,” but she had no other information about
him since they had “ ‘a onetime thing.’ ”
Mother reported she also had twin 15-year-old boys, who were currently “visiting”
their father. She claimed to have no knowledge of how to contact the father and her sons.
When DHHS contacted them, one of the sons reported that they had lived with father for
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about a year, that mother would occasionally come by and pound on the door (sometimes
for hours), yelling and cursing, and demanding the twins be released to her. The police
were sometimes called. The son had not witnessed mother doing drugs but described her
as a “ ‘tweeker’ ” and reported having seen her pour herself a small amount of beer when
she was pregnant, saying it would not hurt the baby, and then go on to drink a whole six
pack of beer. Mother’s other son, who was described as much more guarded and
protective, denied witnessing mother using drugs or consuming alcohol.
At the October 28, 2014, detention hearing, the juvenile court ordered services be
provided to mother. A combined jurisdiction/disposition hearing was scheduled for
November 18, 2014.
On November 18, 2014, mother appeared in court. DHHS requested a
continuance because the minor had been hospitalized with a 102 degree fever. A doctor
reported that such a fever is a common symptom of “drug exposed babies.”
By the December 2014, when the social worker spoke to mother in preparation for
the jurisdiction/disposition report, mother admitted she used methamphetamine and
amphetamine, but claimed it was only on one occasion -- two days before the minor was
born. Mother said she made a mistake and added, “ ‘My baby was healthy when he was
born.’ ” She refused to discuss whether she had breastfed the minor against medical
advice.
Mother denied having a history of excessive use of alcohol or that she drank
regularly after becoming pregnant, and continued to deny that alcohol was an issue for
her. Mother has a 2008 conviction for misdemeanor vandalism and 2012 misdemeanor
convictions stemming for driving under the influence (DUI) and driving with a suspended
license. She told the social worker she had first tried alcohol when she was 21 years old,
had consumed alcohol only three to four times in her life, and that one of the those times
was the time she got the DUI. She claimed that was “ ‘the last time’ ” she consumed an
excess amount of alcohol.
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Mother had completed an alcohol and drug assessment through Specialized
Treatment and Recovery Specialist (STARS). She had also been authorized to receive
treatment from Bridges, an outpatient program.
On October 24, 2014, mother enrolled for drug testing with Strategies for Change,
and then began drug testing and participating in individual and group counseling through
Bridges. Mother also had started attending Narcotics Anonymous and Alcoholics
Anonymous meetings (NA/AA), and she provided an attendance report that showed she
had participated in 21 meetings between October 31 and November 29, 2014.
The social worker spoke to mother’s STARS “recovery specialist” Vernita
Coleman, on December 1, 2014. Coleman reported that mother was compliant with all
her services and indicated she had no concerns. Mother had tested negatively for all
substances 11 times between October 31 and December 1, 2014.
However, mother tested positive for alcohol on November 19, and admitted to
Coleman she consumed alcohol. Mother told the social worker she had consumed a
“small can” of beer on November 18. As we have noted, that day was the day mother
was present in court and the court was informed the minor had been hospitalized. Among
the dates of the NA/AA meetings mother had attended were November 17 and 18, 2014.
She had also attended group counseling at Bridges on November 17, 2014.
The Jurisdiction/Disposition Hearing
On January 26, 2015, the contested jurisdiction/disposition hearing was held, and
Coleman was called by mother to testify. As a recovery specialist, Coleman monitored
mother’s progress with counseling and testing. Mother was required to participate in
treatment, randomly test for drugs twice a week, and submit to Breathalyzer testing every
time she had contact with her recovery specialist. Coleman met with mother two or three
times a week, and mother was “Breathalyzed” each time. Mother had been compliant
throughout that time, except for the two-week period from November 16-30, when
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mother produced a positive test for alcohol. Mother reported to Coleman that she “had
one drink and that she doesn’t drink.”
The positive alcohol test was a urinalysis test that had been sent out to the lab for
an ethyl glucuronide (EtG) test. The Breathalyzer test performed the same day the urine
sample was given came back at “zero.” The “EtG report came back at 10,000 units
greater than,” which, according to Coleman, meant mother had had “an extensive amount
of alcohol maybe.” When asked whether that was consistent with having one drink,
Coleman responded, “Maybe not.” In response to the juvenile court’s inquiry, Coleman
indicated that she could not compare the results of the EtG test “in terms of a standard
test result for a DUI” such as a “.02 or a .03” or “a .10 or a .08.” Although unable to
indicate “down to a science” what a test result of 10,000 units is equivalent to in terms of
the amount of alcohol consumed, Coleman stated that it was within her training and
understanding that “it’s more than a can of beer.”
Coleman had never asked mother how many times she used methamphetamine
and did not know mother had told DHHS she had only used the drug once. That was
inconsistent with the information Coleman had.
Mother testified at the hearing. She explained that the Bridges outpatient program
consisted of parenting classes, drug education, and the effects and side effects of drug
use. She attended four hours per day, for substance abuse and parenting, and attended
NA meetings at night. She had a sponsor and was on the eighth of 12 steps. She
intended to continue attending her support groups and NA classes, and do whatever it
took to get the minor back in her custody.
When asked about her positive test for methamphetamine at the time of the
minor’s birth, mother stated: “Yes, because I used like two days before he was born like
an idiot. The whole time I was clean, and for some stupid reason I made a wrong choice
that day . . . .” She said she did not know how many times she had used
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methamphetamine but that, “yeah, it wasn’t no one time. I’ve done meth a few times and
that was it.”
When asked why she had drank the night before the positive EtG test, mother
stated: “I don’t know. I just drank one can of beer. I just felt like drinking one can of
beer.” When asked what type of alcohol she usually drinks, she said she drank
Budweiser in a can. When asked how many she usually drinks at a time, she replied,
“Well, that day was just one. But usually I will probably drink like two, but that would
be it.” When confronted with Coleman’s testimony that the EtG results indicated it was
more than one drink, mother responded that Coleman was not a toxicologist and insisted
that she had consumed only one small can of Budweiser. When asked about her son’s
statement that he saw her drink while she was pregnant, she said he was lying. The
juvenile court asked mother how much she drank before she got her DUI and she stated
she drank a six-pack and it was a one-time thing. She said she had used alcohol before,
when she was 21, drinking a beer “here or there,” but nothing like the day she got pulled
over.
In contrast with mother’s earlier statements about her sons and their father, mother
testified that the boys had been living with their father for the past several months or a
year. She had been visiting them at their father’s home and spending the night. Prior to
the dependency case, she saw those sons regularly, and she called them frequently.
Mother believed the substance abuse testing and treatment was helping her and
that she was capable of caring for and protecting the minor. She requested that the
petition be dismissed and objected to the juvenile court asserting jurisdiction based on a
failure of proof by DHHS. The juvenile court found mother was not being candid about
her drug or alcohol use, despite her participation in treatment. It found the allegations in
the petition true, adjudged the minor a dependent child of the court, removed him from
mother’s custody, and ordered reunification services for mother.
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DISCUSSION
I. Consideration of Extraneous Evidence
In making its ruling at the jurisdiction/disposition hearing, the juvenile court found
that “instead of learning something during these weeks of treatment, [mother was] still
being dishonest.” In finding her to be dishonest, the juvenile court noted it had observed
her demeanor and also found she had been dishonest in her testimony that she had only a
single beer on November 18, 2014.
Mother contends the juvenile court came to this conclusion based on its improper
consideration of extraneous evidence, citing to the following comments made by the
court when it made its ruling:
“I noticed that the answer to the alcohol test by your client was, ‘Well, they’re not
an expert in toxicology.’ I’m not a toxicologist either, but for the record, . . . I have done
years of drug court before I retired in Yolo County. I have done dependency drug court.
I have done drug court for juvenile court. So I do have some experience, as well as
hearing hundreds of DUI cases. And the answer that a person is not a toxicologist for
anyone who has this experience knows that someone is testing in the morning and they
drank the night before would be a substantial amount of alcohol. The burn off rate is
about [] two per hour. And she still had it in her system in the morning.” Mother claims
these comments reflect that the juvenile court determined she was being dishonest based
on its understanding of blood-alcohol content (BAC) testing, which was extraneous and
irrelevant because she had been subjected to an EtG test.
We first note that, “as a general rule, ‘the failure to object to errors committed at
trial relieves the reviewing court of the obligation to consider those errors on appeal.’
[Citations.] This [rule] applies to claims based on statutory violations, as well as claims
based on violations of fundamental constitutional rights.” (In re Seaton (2004)
34 Cal.4th 193, 198; see also People v. Nelson (2012) 209 Cal.App.4th 698, 711 [failure
to object to improper admission of evidence forfeits issue on appeal]; People v. Scott
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(1994) 9 Cal.4th 331, 356 [claim based on the trial court’s articulated reasoning for
exercising its sentencing discretion forfeited for failure to object].) At the time the
juvenile court made its ruling, mother made no objection to the court using its experience
in DUI cases and its understanding of BAC testing. Mother did not request to reopen the
evidentiary portion of the hearing to introduce evidence that BAC and EtG testing are
different and provide different information, or to explain the meaning of her EtG test
result.2 Her failure to object prevented the juvenile court from remedying any error or
clarifying the extent to which it was considering its experience with BAC testing in
reaching its decision in this case. Thus, mother forfeited the contention she now asserts
on appeal.
In any event, even if the juvenile court improperly considered extraneous BAC-
based information it obtained from outside sources in determining mother lied about
having only consumed a single beer that night, that error was harmless. It was clear from
other evidence, specifically, the testimony of mother’s counselor, that mother was lying
when she claimed she had consumed only a single beer.
Furthermore, the juvenile court’s finding that mother lacked credibility and was
being dishonest about her substance abuse was also based on mother’s other various
explanations of her drug and alcohol use. As noted by the juvenile court, mother initially
denied having used methamphetamine during her pregnancy. When confronted in the
hospital with the positive methamphetamine drug test, she denied using
2 We decline to accept mother’s offer of additional evidence regarding alcohol
biomarkers, including EtG biomarker testing, which she attached to her opening brief as
an exhibit. By submitting such extraneous evidence for consideration, she requests this
court do precisely what she is complaining the juvenile court did in error. Furthermore,
we find it bewildering that she requests we consider the documentation because it
indicates that a “ ‘high’ ” positive, which may indicate heavy drinking the same day or
the previous day or two, is a result of over 1,000 ng/ml, and mother’s witness testified
mother’s result was over 10,000 units.
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methamphetamine and made up a story that she must have eaten something “laced” with
drugs. She went ahead and breastfed, against medical advice, insisting that she did not
use drugs.
When confronted by the social worker about her methamphetamine use during her
pregnancy with the minor, mother changed her story and reported she had only used
methamphetamine one time, and that was two days before the minor was born. It was
only after her counselor contradicted that information at trial that mother confessed, “I
don’t know if I told [the social worker] that. But, yeah, it wasn’t no one time. I’ve done
meth a few times and that was it.” Yet she continued to deny knowing how she tested
positive for methamphetamine during her previous pregnancy.
Mother’s acknowledgement of her alcohol use has also been disingenuous. Her
claim that she consumed a single beer the night before her EtG test result of over 10,000
units is implausible, even to her own counselor. Further, the court would have been
justified in concluding that it was unlikely that a person who was purportedly a non-
drinker, would have been unable to resist drinking any amount of beer when she knew
she was being monitored. Moreover, mother’s statements regarding her prior beer
drinking were inconsistent. She told the social worker she had consumed alcohol only
three to four times in her life, and that one of those times was the time she got the DUI.
Yet, during her testimony at the hearing, she stated that she drank alcohol when she was
21, drinking a beer “here or there,” that her alcoholic beverage of choice is Budweiser
beer in the can, and that she “usually” had two cans when she drinks. Confronted with
her son’s statement that he had seen her drink a six-pack while she was pregnant, she
dismissively claimed he was lying. The juvenile court expressly indicated it “observed
the demeanor here, and I think this goes well more than a lack of awareness. I think it
goes to dishonesty.”
Issues of credibility and the weighing of mother’s episodes of dishonesty are
within the province of the juvenile court. (In re Christina T. (1986) 184 Cal.App.3d 630,
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638-639.) The juvenile court’s determination that mother was continuing to be dishonest
did not turn, as mother alleges, on its knowledge and consideration of BAC test results.
It was based on the implausibility of mother’s testimony, the testimony of mother’s own
witness, which also indicated mother was being dishonest about her drinking prior to the
positive EtG test, mother’s history of dishonesty, and mother’s demeanor while
testifying. Consequently, it is not reasonably probable that mother would have obtained a
more favorable result even if the court had not considered the extraneous information.
(People v. Watson (1956) 46 Cal.2d 818, 836; cf. People v. Zambrano (2004) 124
Cal.App.4th 228, 243 [defendant’s explanation of the events was patently unreasonable
and even if the prosecutor had not committed misconduct in cross-examination and
closing argument, it is not reasonably probable that the jury would have believed
defendant’s version of events].) Nor can it be said that it is “substantially likely” the
juvenile court’s consideration of the extraneous evidence resulted in actual harm. (Cf. In
re Carpenter (1995) 9 Cal.4th 634, 654 [In the context of jury misconduct involving the
receipt of extraneous information, the presumption of prejudice is rebutted when an
examination of the entire record, including the strength of the evidence against the
defendant, shows there is no substantial likelihood that the defendant suffered actual
harm.].)
II. Removal
Mother also contends there was insufficient evidence to support the juvenile
court’s findings that the minor was at substantial risk of physical harm so as to justify
removal from her custody because she contends there were reasonable alternatives to
removal. We disagree.
To support an order removing a child from parental custody, the juvenile court
must find clear and convincing evidence that “[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
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physical health can be protected without removing the minor from the minor’s parent’s
. . . physical custody.” (§ 361, subd. (c)(1).) The juvenile court must also “make a
determination as to whether reasonable efforts were made to prevent or to eliminate the
need for removal of the minor” and “state the facts on which the decision to remove the
minor is based.” (§ 361, subd. (d).)
“ ‘The jurisdictional findings are prima facie evidence that the child cannot safely
remain in the home. [Citation.]’ [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.” [Citation.] The court may consider a
parent’s past conduct as well as present circumstances. [Citation.]’ [Citation.] We
review a dispositional order removing a child from parental custody for substantial
evidence.” (In re John M. (2012) 212 Cal.App.4th 1117, 1126.) The evidence is
considered “in the light most favorable to the prevailing party, giving the prevailing party
the benefit of every reasonable inference and resolving all conflicts in support of the
order. [Citations.]” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Prenatal use of a dangerous drug is probative of future child neglect, as
demonstrated by mother’s own behavior here. (In re Troy D. (1989) 215 Cal.App.3d
889, 899.) Not only did mother use methamphetamine just days before the minor’s birth,
she breastfed the minor against medical advice and refused to desist in doing so. The
minor suffered by testing positive for amphetamine and methamphetamine at birth, and
showing symptoms consistent with drug exposure shortly thereafter. Mother drank large
amounts of alcohol during her pregnancy, and continued to drink alcohol, even after the
minor was detained and she was in a substance abuse treatment program. Indeed, the
evidence shows mother went to both group counselling at Bridges and an NA/AA
meeting the day before she drank beer and went to NA/AA the same day she had the
beer.
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The juvenile court found mother had failed to learn during the previous months of
treatment and was still being dishonest about her substance abuse. It was absolutely
appropriate for the juvenile court to consider mother’s denials when determining the risk
to the minor if placed with her. (See In re Esmeralda B. (1992) 11 Cal.App.4th 1036,
1044.) Mother cannot be expected to modify her behavior if she remains in denial.
(Ibid.) The juvenile court reasonably concluded that mother’s denial of her substance
abuse problem reflected an underlying resistance to the treatment needed to effect the
behavior changes that would ensure the minor’s safety.
Mother argues that the juvenile court could have put safeguards into place, such as
requiring mother to complete random drug and alcohol testing and unannounced visits by
the DHHS to the home, as a reasonable means to protect the minor without removing him
from mother’s custody. Such measures would not adequately protect the minor.
Mother had already established that she was unable to refrain from alcohol use for
the brief two and a half month period prior to the disposition hearing, even while in
treatment and being subject to random testing. She had proven that she was unwilling to
follow medical advice with respect to the care of the minor, and was willing to continue
to expose the minor to dangerous substances, even while being monitored by physicians.
Mother’s continued dishonesty and refusal to acknowledge her past substance abuse
indicates she is unable to control it and would likely continue to place the minor at risk.
Unannounced visits can only assess the situation and mother’s sobriety at the time
of the visit. Substance abuse testing can only detect use after the fact -- which would be
after mother had already placed the minor at risk again. Given mother’s inability to
refrain from alcohol use despite random testing, coupled with her dishonesty, which
reflects her refusal to acknowledge her problem and its potential effect on the minor,
there was no way to guarantee the minor’s physical health, well-being and protection
while living with mother. There are no reasonable alternatives to removal. Until mother
can establish she can benefit from the provision of services, there is ample evidence the
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minor’s physical health, safety, protection, and well-being would be in serious jeopardy if
he were returned to her custody.
DISPOSITION
The judgment is affirmed.
MURRAY , J.
We concur:
BLEASE , Acting P. J.
ROBIE , J.
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