In re Angel M. CA2/2 ( 2014 )

Filed 1/9/14 In re Angel M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ANGEL M. et al., Persons Coming B248797
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK84173)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CRYSTAL M.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Marguerite Downing, Judge. Affirmed.
Janette Freeman Cochran, under appointment by the Court of Appeal, for
Defendant and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
___________________________________________________
Crystal M. (Mother) appeals from a juvenile court disposition order. She contends
that there is insufficient evidence to support dependency jurisdiction over her children
pursuant to Welfare and Institutions Code section 300. Mother admitted to a social
worker that she was using methamphetamine (meth) to cope with stress. Mother’s
admitted drug use, coupled with her history of substance abuse, child cruelty and
domestic violence, supports dependency jurisdiction over her young children.
FACTS
Mother has three children: S. (born in 2005), Angel (2008) and April (2012).1
Juan M. (Father) is the father of Angel and April. In 2009, the Department of Children
and Family Services (DCFS) received referrals regarding Mother’s family, and instituted
voluntary services based on substantiated allegations of emotional abuse. Mother
obtained a restraining order against Father due to domestic violence. In 2010, Mother
was arrested for child cruelty, Father was arrested for domestic violence, and DCFS filed
a dependency petition.
In December 2010, the juvenile court sustained allegations that (1) Mother struck
two-year-old Angel and burned his face and arm with a cigarette, causing unreasonable
pain and suffering. Father knew of the abuse and failed to protect the child; (2) Mother
and Father engaged in physical altercations in the children’s presence; and (3) Father has
a history of substance abuse and currently uses meth and alcohol, rendering him
incapable of providing regular child care. After Mother and Father participated in court-
ordered services, Angel returned to Mother’s care in September 2011. The first
dependency case terminated in May 2012, despite a February 2012 report from the
paternal grandmother (PGM) that Mother and Father were “again using drugs,” leaving
Angel unsupervised and unfed.
In February 2013, four-year-old Angel asked the staff at his school for help
because Mother and Father “were fighting over [one-month-old April] while [ ] Mother
1 S. is not in Mother’s custody and is not involved in this proceeding.
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was holding the baby.” Father yelled at Angel and called him names. DCFS promptly
went to the home of the paternal grandparents, where Mother and her family were living.
The home was clean and appropriate, with plenty of food and beds.
During the initial visit, Mother understood the social worker’s questions, did not
seem paranoid or hallucinatory, and was not itching or picking at her skin. However, the
social worker “observed that Mother appear[ed] to present excessive weight loss, body
twitching, excessive fidgeting and appeared unable to be at ease while sitting speaking
with” the social worker. Mother indicated that “taking care of a newborn child is both
stressful and a lot of work.” Father’s failure to assist her with April “has caused
arguments between them and they have argued in front of the children” on a daily basis,
though Mother denied fighting with Father while holding April.
When questioned about her tics and informed that she appeared to be using meth,
Mother “admitted that she has been ‘smoking meth’ to help her cope with the stress at
home.” She does not use the drug inside the home or in the presence of the children.
“Mother stated that she last smoked ‘meth’ yesterday.” She agreed to drug test, adding
that she would most likely be positive for meth.2 Mother noted that she lost custody of
her daughter S. and does not want to lose Angel or April.
Father did not appear to be drugged or drunk during his interview. He stated that
Mother constantly threatens to leave him, which causes verbal arguments. He accused
Mother of wanting to go “out to the club” and “party.” Father denied having physical
altercations or fighting over April. He maintained that he helps take care of April and
enjoys holding the baby. Father denied using drugs, but “stated that he normally drinks a
couple of 40’s (40 oz. beer) every day to relax.” Father indicated that he enrolled in an
in-patient drug rehab program a year ago to address his addiction to meth and has not
used the drug since completing the program. He was quiet and made no statement when
asked if Mother uses drugs. Father is a nonactive member of the Compton Locos gang.
2 No drug test was administered, although a sheriff’s field sobriety test indicated
that Mother was sober.
3
The paternal grandfather (PGF) stated that despite his encouragement, Father is
not motivated to work or provide for his family. The PGF no longer sees physical attacks
between Mother and Father. He attributed their former aggressive behavior to drug use.
He is unaware of any current drug use. The PGM similarly described past aggressive
behavior by Mother and Father: she was a victim of their violence. Now, they disagree
with each other without physical attacks. She is Angel’s primary caretaker.
On February 14, 2013, DCFS filed a petition on behalf of Angel and April. It
alleged that Mother has a history of drug use and is a current user of meth, and Father has
a history of drug abuse, including meth, and is a current abuser of alcohol. The parents’
substance abuse renders them incapable of providing regular care and supervision of the
children. Mother and Father denied the allegations. The court found a prima facie case
for detaining the children. They were placed in the home of the paternal grandparents.
Monitored visits were authorized.
DCFS submitted a jurisdiction report in April 2013. Angel was healthy and
cheerful in the care of the paternal grandparents. Angel stated that he saw Mother throw
out all of his clothing, leaving him nothing to wear. The PGM confirmed that this
occurred twice, necessitating the purchase of new clothing. Angel calls Mother “Crystal”
because he has lived with the PGM during his formative years. Angel could not confirm
or deny the incident in which his parents fought over April, although he described having
Mother pinch the skin on the back of his hand as a punishment. Angel also stated that
Father “drinks a big drink and he plays with me.” He does not understand the concept of
intoxication, but indicated that Father did not act in a strange or inappropriate manner
when he drinks. Angel likes living with his grandparents.
Mother denied fighting with Father over April, though they argue because Father
does not help her with the children and she was stressed and exhausted. Mother
acknowledged that Father “drinks some beers” but denied that he becomes intoxicated,
just more relaxed and willing to play with Angel. Father similarly denied fighting over
April, and reiterated that he stopped using meth during a rehab program. He denied ever
saying that he drinks beer every day. On March 6, 2013, Mother tested negative for
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drugs and Father tested positive for alcohol. Mother reported that she experimented with
drugs when she was in the eighth and ninth grades, but denied current drug abuse. Both
parents admitted to a history of domestic violence and drug abuse, leading to DCFS
intervention and a dependency case in 2010.
The PGM could not confirm Mother’s drug use: although she has not seen Mother
take drugs, she suspected that she might be using because Mother looked so thin and
weary, and also because Mother threw Angel’s clothing out twice, for no reason. The
paternal grandparents asked Mother about drug use, which she denied. The PGF denied
that Father drinks daily, only a few beers when he has money. He described Father as a
responsible drinker. The PGF expressed concern about the children because Mother was
very thin, tired, and would scratch herself. He and the PGM are away at work all day and
they do not know what happens in the home while they are gone.
DCFS assessed the children as being at risk of harm. Mother admitted to recently
using meth while caring for the children, as a way of coping with stress. The PGM
described odd behavior and concerns of possible drug abuse by Mother. Further, Father’s
use of alcohol is concerning because he has substituted one substance (meth) for another
(alcohol), which may be a gateway into a relapse to harder drug abuse. It is likely that
Father uses alcohol while caring for the children.
At the jurisdiction hearing on April 10, 2013, counsel for the parents and the
children asked the court to dismiss the petition for lack of evidence. In its ruling, the
court observed that “this is a marginal case.” Nevertheless, DCFS met its burden by a
preponderance of the evidence, given the totality of the circumstances. Specifically,
four-year-old Angel asked for assistance because he was concerned for the safety of his
baby sister. The parents have a history of drug use, and Mother engaged in “bizarre
behavior” by throwing out Angel’s clothing, leaving him with only the attire he was
wearing. Mother presented herself to the social worker as being excessively thin, and
was twitching and fidgeting, which is an indication of drug use. Mother inappropriately
pinched Angel as a punishment.
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The court sustained an allegation that Mother has a history of drug abuse and
currently uses meth, rendering her incapable of providing regular child care and
supervision. It dismissed the count against Father. Because Father is nonoffending, and
the family appears to be taking advantage of drug programs, the court released the
children into parental custody under the supervision of DCFS and the court. Mother was
ordered to take a parenting class and complete a high school diploma or equivalent.
Angel was given counseling services, and Mother was ordered to complete seven
random, on-demand consecutive drug tests. If any tests were positive, she would be
required to complete a drug program. A timely appeal from the disposition ensued.
DISCUSSION
Mother contends that the record does not support dependency jurisdiction, because
Angel and April are not “at risk of suffering physical harm as the result of [M]other’s
illicit drug use.” We review jurisdictional findings to see if substantial evidence,
contradicted or uncontradicted, supports them. (In re Heather A. (1996) 52 Cal. App. 4th
183, 193.) “‘“In making this determination, we draw all reasonable inferences from the
evidence to support the findings and orders of the dependency court; we review the
record in the light most favorable to the court’s determinations; and we note that issues of
fact and credibility are the province of the trial court.”’” (In re I.J. (2013) 56 Cal. 4th
766, 773.)
Sustained findings require (1) neglectful conduct by the parent; (2) causation; and
(3) a substantial risk of serious physical harm or illness.3 (In re Rocco M. (1991) 1
Cal. App. 4th 814, 820.) “[P]roof of current risk of harm is not required to support the
initial exercise of dependency jurisdiction under section 300, subdivision (b), which is
satisfied by a showing that the child has suffered or there is a substantial risk that the
3 The court may exercise jurisdiction if “[t]he 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 [ ] 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.” (Welf. & Inst. Code, § 300, subd. (b).)
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child will suffer serious physical harm or abuse.” (In re Adam D. (2010) 183
Cal. App. 4th 1250, 1261.) Evidence of past conduct may be used to establish dependency
jurisdiction, to the extent that it is probative of current conditions. (In re J.K. (2009) 174
Cal. App. 4th 1426, 1438; In re Savannah M. (2005) 131 Cal. App. 4th 1387, 1394.) The
juvenile court need not wait until the child is actually harmed before intervening. (In re
Eric B. (1987) 189 Cal. App. 3d 996, 1003.)
The courts afford special protection to “children of such tender years that the
absence of adequate supervision and care poses an inherent risk to their physical health
and safety.” (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) While an older child may
be able to avoid physical danger and seek care from responsible adults if neglected by a
parent, infancy is “an inherently hazardous period of life” with special vulnerability. (Id.
at p. 825; In re Drake M. (2012) 211 Cal. App. 4th 754, 767; In re Destiny S. (2012) 210
Cal. App. 4th 999, 1004 [11-year-old child could avoid the physical dangers that make
infancy hazardous].) The primary concern is the child’s best interests and the provision
of a safe home free from the negative effects of substance abuse. (Welf. & Inst. Code,
§ 300.2; In re B.T. (2011) 193 Cal. App. 4th 685, 692.)
At ages four and three months, respectively, Angel and April were afforded
special protection due to their vulnerability. Indeed, given their youth, “the finding of
substance abuse is prima facie evidence of the inability of a parent or guardian to provide
regular care resulting in a substantial risk of physical harm.” (In re Drake M., supra, 211
Cal.App.4th at p. 767.)
Angel sought help from school staff members because he feared for the safety of
his newborn sister: he saw Mother fight with Father while holding April. There is no
reason to doubt this young boy’s concerns or motivations. Mother was interviewed and
candidly admitted using meth one day earlier. Father was silent when asked whether
Mother was using drugs. Mother had the appearance and mannerisms of a meth user, as
well as a history of substance abuse. The juvenile court discounted Mother’s recanting of
current drug abuse, made after the children were removed from her custody.
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DCFS has been involved with Mother and Father since 2009. Mother showed
unusual cruelty to Angel by burning him with a cigarette on his face and arm when he
was two years old. This occurred while Mother was being overseen by DCFS, and led to
a sustained petition against Mother for child abuse in 2010. Both the PGM and the PGF
acknowledge that Mother and Father become violent and aggressive while using drugs.
Angel refers to Mother as “Crystal” because he views the PGM as his parent, not Mother.
Given the parental history of drug abuse, violence and child abuse, the record
supports juvenile court jurisdiction. Demonstrating remarkable recall for a four-year-old
child, Angel informed the DCFS social worker that “Crystal throws my clothes away”
and punished him inappropriately by pinching his hand. The PGM confirmed that
Mother twice threw out all of Angel’s clothing for no reason, leaving him only the
clothes on his back.4 When a child this young can describe irrational parental behavior,
and alerts responsible adults that his baby sister is in danger of harm from domestic
violence, the courts need not wait for disaster to befall a helpless infant before
intervening to ensure that drugs are not inducing Mother’s rage and strange behavior,
especially since Mother frankly admitted using meth to relieve stress.
State action may be exercised to prevent harm. “The idea that state authority can
be mobilized only after the fact is untenable. Power is not disabled from dealing with
latent risk. The state, having substantial interests in preventing the consequences caused
by a perceived danger is not helpless to act until that danger has matured into certainty.
Reasonable apprehension stands as an accepted basis for the exercise of state power.”
(In re Eric B., supra, 189 Cal.App.3d at p. 1003.) Mother’s recurrent drug use and her
history of child cruelty and abuse sufficiently justify dependency jurisdiction to avert
harm to Angel and April.
4 Mother posits that the clothing incidents are “remote in time,” occurring
“presumably” before the prior dependency case in 2010. Given that Angel was born in
2008, and recalls the clothing incidents, it is not reasonable to infer that he described
eccentric behavior occurring when he was one or two years old.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J.
FERNS, 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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