In re Angelo W. CA2/3 ( 2013 )

Filed 3/7/13 In re Angelo W. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
In re ANGELO W., a Person Coming B242605
Under the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. CK61597)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
R.W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Veronica S.
McBeth, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
_________________________
INTRODUCTION
In this appeal, mother R.W. contends there is insufficient evidence to support the
juvenile court’s order removing three-year-old Angelo W. from her custody (Welf. &
Inst. Code, § 361).1 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Department of Children and Family Services (the Department) received a
referral in September 2011 alleging mother had been arrested for possession of a
methamphetamine pipe and Angelo, then 23 months old, was missing. Mother has a long
history, beginning in 1994, of arrests and convictions for possession, or being under the
influence, of controlled substances. Mother was transient and left Angelo with Vicky A.
before being arrested. Vicky A. informed the social worker that she had lived with
mother but moved out because of mother’s drug use, which behavior attracted drug
dealers and users. The maternal grandmother refused to allow mother into her house
because of mother’s methamphetamine use and refusal to seek help. Mother had
completed a drug rehabilitation program and claimed to have been sober for two or three
years before relapsing.
Mother also has a long history with the Department dating to 2005. The juvenile
court terminated her parental rights to three older children, and she relinquished her rights
to a fourth child. She did not know who Angelo’s father is, stating there were “[a] couple
[of] options.”
On October 6, 2011, mother agreed to submit to a drug test and tested positive for
methamphetamines and amphetamines. She claimed not to know why the test was dirty.
Mother admitted having used drugs two weeks earlier, but denied having a drug problem
or that drugs affected her ability to care for Angelo.
On October 13, 2011, the Department removed Angelo from mother’s custody and
filed a petition alleging Angelo was at risk of harm because of mother’s extensive history
of drug use, recent positive drug test, and the fact mother had lost her parental rights to
1
All further statutory references are to the Welfare and Institutions Code.
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Angelo’s siblings. (§ 300, subd. (b).) Mother promised to enroll in a residential
treatment program at Phoenix House but failed to, reportedly because of a “ ‘family
function.’ ” The Department recommended that mother be denied reunification services
pursuant to section 361.5, subdivision (b)(11) [parent lost parental rights over a sibling
and has not made reasonable effort to treat problems leading to sibling’s removal]. The
juvenile court ordered Angelo detained from mother.
The police arrested mother again in November 2011 for a parole violation and
deposited her at the Phoenix House residential drug treatment program pursuant to her
criminal sentence. Once in the facility, mother produced negative drug-test results and
actively participated in therapy and parenting workshops. The Department changed its
recommendation and advised the juvenile court to grant mother reunification services.
However, the Department recommended against releasing Angelo to mother just yet
because she had only been in treatment a short time. In view of the length of mother’s
drug abuse, the social worker felt it would be premature to return the child to mother until
she had more time to stabilize her rehabilitation and focus on her treatment.
The juvenile court sustained the petition as described above and took judicial
notice of the dependencies. It ordered the Department to investigate mother’s progress in
her rehabilitation program and the quality of mother’s visits with Angelo, and to report
any changes in the Department’s recommendations.
Two weeks later, the Department reported that mother remained in compliance
with her residential treatment program, and continued to test negative for drugs. The
Department again wrote: “Due to Mother’s long standing substance abuse history [the
Department] believes it is still early in Mother’s recovery process and release of the child
to Mother at this time is premature.” Over the Department’s objections, the court granted
mother two-hour unmonitored visits twice a week with Angelo at her residential
treatment facility.
Phoenix House closed down for lack of funding and so mother transferred to
Walden House. The social worker observed mother’s visits and found that Angelo
appeared happy and comfortable in mother’s presence. Mother acted appropriately.
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Walden House confirmed it would accommodate Angelo, if the court released him to
mother’s care.
At the time of the May 2012 disposition hearing, mother was in compliance with
her drug treatment program and with the terms of her parole. According to her parole
officer, mother accepted full responsibility for her actions and expressed remorse for her
crimes. Her parole will expire in March 2014.
At the disposition hearing, mother called Walden House’s Program Director who
did not see any drawbacks to having Angelo placed with mother at the facility. The
director did acknowledge on cross-examination that mother was free to leave the program
at any time and could simply walk out the door with the child.
Mother called her counselor at Walden House who testified that mother was doing
well in the program and it would be appropriate for Angelo to reside there with her.
However, the counselor did not know how long mother had been sober, the length of
mother’s drug history, whether mother had participated in a recovery program before, or
that mother had tested positive for methamphetamines as recently as the previous
October.
Mother could not remember how many drug rehabilitation programs she had
previously attended and acknowledged those earlier attempts at recovery were
unsuccessful. She claimed she was finally willing to become sober because she had lost
everything when she lost Angelo. She had not bonded with her other children because
she gave birth to them while incarcerated and the authorities removed the babies
immediately after their birth.
At the close of the hearing, the juvenile court ordered Angelo removed from
mother’s custody. (§ 361, subd. (c).) The court found that the child would be in
substantial danger if he were not removed and there was no reasonable means by which
the child could be protected without his removal because of mother’s extensive history of
drug abuse and the seriousness of the drugs involved, where the relapse rate is extremely
high. Noting mother’s long period of methamphetamine use and her transience, the court
congratulated mother on doing what was asked of her, but ruled “it is too soon to have
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your child placed with you.” The court was “not willing to risk placement of [mother’s]
son with [her] until [she] had a longer period of sobriety.” The court ordered family
reunification services for mother and awarded her monitored visitation outside of her
program and unmonitored visits in her program. Mother filed this appeal.
CONTENTION
Mother contends that there is insufficient evidence to support the order removing
Angelo from her custody.
DISCUSSION
To remove a child from his or her parent’s custody, the juvenile court must find
“[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 or guardian’s physical custody. . . .”
(§ 361, subd. (c)(1)). Removal must be supported by clear and convincing evidence.
(In re Henry V. (2004) 119 Cal.App.4th 522, 528-529.) “ ‘A removal order is proper if it
is based on proof of parental inability to provide proper care for the minor and proof of a
potential detriment to the minor if he or she remains with the parent. [Citation.]’ ” (In re
Miguel C. (2011) 198 Cal.App.4th 965, 969.) “ ‘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.]’ [Citations.]” (Ibid., italics
added.) In this regard, the court may look to a parent’s past conduct in addition to
present circumstances. (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)
We review an order removing a child from parental custody for substantial
evidence in a light most favorable to the juvenile court findings. (In re J.K. (2009)
174 Cal.App.4th 1426, 1433.) “In reviewing the sufficiency of the evidence on appeal,
we look to the entire record to determine whether there is substantial evidence to support
the findings of the juvenile court. We do not pass judgment on the credibility of
witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of
the evidence lies. Rather, we draw all reasonable inferences in support of the findings,
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view the record in the light most favorable to the juvenile court’s order, and affirm the
order even if there is other evidence that would support a contrary finding. [Citation.]
When the trial court makes findings by the elevated standard of clear and convincing
evidence, the substantial evidence test remains the standard of review on appeal.
[Citation.] The appellant has the burden of showing that there is no evidence of a
sufficiently substantial nature to support the order. [Citations.]” (In re Cole C., supra,
174 Cal.App.4th at pp. 915-916, italics added.)
The evidence amply supports the juvenile court’s decision to remove Angelo from
mother’s custody. Mother’s long history of drug abuse and rehabilitation relapses is
serious and intractable. Mother is 32 years old and has been abusing drugs for 19 of
those years. Her drug of choice is methamphetamines and amphetamines which have a
high rate of recidivism. She admitted to having attended more substance abuse programs
than she could remember and she could recall having completed only one. The
Department repeatedly advised the court that mother needed more time in recovery. As a
consequence of her drug abuse, people in her life, such as her own family and Vicky A.,
refuse to be around mother, and so mother is transient. She also lost parental rights to her
other children because of her drug abuse, a statutory justification for denying
reunification services outright. (§ 361.5, subd. (b)(11).) We reject mother’s argument
that Walden House would protect Angelo. The director testified that Walden House
would not prevent mother from leaving the program with Angelo at any time. And,
mother’s counselor there was unaware of the extent of mother’s drug use and recidivism
when she opined it would be appropriate for Angelo to reside with mother there. The
focus of section 361.5, subdivision (c) is to avert harm to the child. (In re Miguel C.,
supra, 198 Cal.App.4th at p. 969.) Therefore, although mother has made strides in her
efforts at sobriety this time around, given her entrenched history of drug abuse and
relapses, the record amply supports the juvenile court’s finding by clear and convincing
evidence that it was premature to return the baby to mother’s custody after only six
months of rehabilitation.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KLEIN, P. J.
CROSKEY, J.
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