In re N.R. CA3 ( 2021 )

Filed 12/8/21 In re N.R. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yolo)
----
In re N.R. et al., Persons Coming Under the Juvenile C093954
Court Law.
YOLO COUNTY HEALTH AND HUMAN (Super. Ct. Nos.
SERVICES AGENCY, JV-2021-18-1, JV-2021-18-2)
Plaintiff and Respondent,
v.
T.R.,
Defendant and Appellant.
T.R., mother of the minors, N.R. and S.M., appeals from the juvenile court’s
orders asserting jurisdiction over the minors and removing them from mother’s custody.
(Welf. & Inst. Code, §§ 300, subd. (b), 361, subd. (c)(1) & (6).)1 Mother contends:
(1) the juvenile court lacked substantial evidence to sustain the jurisdictional findings
under section 300, subdivision (b)(1); (2) the juvenile court did not have substantial
1 Undesignated statutory references are to the Welfare and Institutions Code.
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evidence to order removal from mother at disposition; and (3) the juvenile court erred in
failing to consider alternatives to removal. We will affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On December 8, 2020, the Yolo County Health and Human Services Agency
(Agency) received a referral regarding domestic violence and substance abuse in the
home. It was reported that mother found her boyfriend, J.P., smoking methamphetamine
in the garage and told him to leave. While the children were present, there was a physical
confrontation and J.P. grabbed mother’s wrists, leaving a scratch on one and a mark on
the other. J.P. then began to throw items, including a chair. The investigating social
worker attempted to contact mother 10 times between December 17, 2020, and January
19, 2021. On January 20, 2021, the social worker was able to contact mother at home.
Mother stated she did not want contact with the Agency and refused entry into the home.
Mother denied seeing J.P. using any sort of drug but said that they had a verbal dispute.
She denied the children were present and denied any domestic violence. Mother reported
that she was no longer in a relationship with J.P. and he had not been in the home since
the December 8, 2020 incident, but said she did have contact with him at the hospital
when her baby was born because he was the father. J.P. was interviewed, and he denied
drug use. He further stated that he and mother were still in a relationship and that he
resides at the home with mother.
On January 25, 2021, the Agency received a report that mother’s new baby had
died while in the care of mother and J.P. Mother and J.P. admitted to co-sleeping with
the baby in the bed with them, and preliminary findings indicated that positional
asphyxiation was the cause of death. Mother denied drug use by herself or J.P., denied
domestic violence, and stated that they were not in a relationship but that J.P. came by the
home at times to visit with the baby. The maternal grandfather denied seeing any marks
or bruises on mother, but the grandmother reported seeing a handprint bruise on mother’s
bicep a few months prior. The children were interviewed, and they told the social worker
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that J.P. had been in the home, but he was not always there. S.M. stated that he did not
like it when J.P. became angry because he would yell at mother and throw things,
including multiple chairs, breaking them. S.M. stated that he would yell at mother and
J.P. to stop, but that did not usually work, so sometimes he and his brother would hide
under blankets.
The maternal grandmother agreed to keep the children at her home during the
investigation. On January 26, 2021, the grandmother contacted the agency and reported
that she was very concerned because mother’s friend who had been staying with her had
left the home due to mother actively using methamphetamine. The social worker made
attempts to contact mother, who declined contact with the Agency. The Agency
scheduled a child and family team (CFT) meeting for January 28, 2021. Mother said this
was “unwanted” and illegal contact, but both maternal grandparents agreed to be present.
Mother subsequently contacted the social worker and stated she would no longer be
having contact with the Agency and that they could contact her tribal representative,
Ashlee May. The social worker contacted Ms. May, who stated that mother was willing
to drug test and it would be scheduled for the following week. On February 1, 2021, the
tribal representative stated mother and J.P. were ready to test. When the social worker
scheduled the drug tests, there was no response from either mother or J.P. Another drug
test was scheduled, but mother did not respond to attempts to contact her by both the
social worker and the tribal representative.
On February 3, 2021, the Agency obtained a protective custody warrant, and the
children were removed from the care of the parents. The Agency filed petitions
regarding the minors on February 5, 2021, alleging that the minors were at risk under
section 300, subdivision (b)(1) due to mother’s substance abuse and her failure to protect
the children from domestic violence and J.P.’s substance abuse.
On February 8, 2021, the juvenile court held a detention hearing, and the minors
were detained. The tribal representative of the Citizen Potawatomi Nation stated that the
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tribe wanted the children placed with the maternal grandfather, who was the tribal
member. At the detention hearing, mother’s counsel argued against detention and stated
she was “absolutely willing to drug test for the Agency” and that J.P. was no longer in the
home. The court ordered supervised visitation for mother.
The Agency filed a combined jurisdiction and disposition report for the hearing on
March 15, 2021. The representative of the Citizen Potawatomi Nation agreed with the
Agency recommendation to take jurisdiction, was consulted for case planning, and was
present at the CFT meeting.
The Agency reported mother was asked to drug test on February 18, 24, and 26,
2021, and March 2 and 9, 2021, but she failed to show up for any of the drug tests and
had not drug tested as previously agreed.2 On March 1, 2021, mother told the social
worker she was unable to make it to the testing site but that she had tested on her own at
another facility; she agreed to provide proof of the test but failed to do so. Mother
subsequently provided negative test results from this facility, but the social worker could
not verify the results, as mother had not signed a release of information and the tests were
not observed, as had been required.
On March 1, 2021, mother reported to the social worker that she was no longer in
a relationship with J.P. When the social worker met with the minors on March 5, 2021,
they reported that mother had indicated to them that she was still speaking to J.P. and
2 Mother had used methamphetamine since she was 16 years old and at one point
was using daily. She received voluntary family maintenance services from November
2012 to July 2013 after she used methamphetamine while pregnant with N.R. and he was
born positive for amphetamines. Mother also used methamphetamine while pregnant
with S.M. and following his birth. On or about July 1, 2014, both minors were placed
into protective custody due to neglect and substance abuse by the parents. The family
received reunification services from July 28, 2014, to April 14, 2015, and family
maintenance services from April 14, 2015, to October 10, 2015, when the case was
closed.
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gave them a toy that she said was from J.P. N.R. reported J.P. was not at the home when
they visit but he returns when they leave.
The Agency reported mother completed a substance abuse assessment over the
phone and was referred for outpatient treatment at CommuniCare Health Center
(CommuniCare). Mother expressed a preference to attend treatment at the Sacramento
Native American Health Center, but they did not have an opening for two weeks. The
court had previously ordered that mother was to have three hours of visits per week
supervised by the Agency but she would not respond to the attempts by the Agency’s
visitation staff to contact her to schedule visits. The tribal representative reported that
mother had been uncooperative with their requests as well, and they supported the
children remaining in out of home placement.
A contested jurisdiction and disposition hearing took place on March 15, 2021.
The representative of the Citizen Potawatomi Nation, Tracy Humphrey, testified as a
qualified expert witness under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.)
(the ICWA). She assessed the family and testified that the children would be harmed if
they were returned to the parents at this time and the tribe supported the children
remaining placed out of the home. Mother submitted several exhibits indicating that she
signed up for various treatment services and had her locks changed, but offered no
witnesses or testimony. In closing argument, mother’s counsel did not dispute mother’s
history with child welfare but asked the court to strike allegation b-1 on the petition
regarding mother’s possible drug use and continuing a relationship with someone who
was using drugs. Mother’s counsel further asked the court to strike the last two sentences
of allegation b-2 because mother claimed she was no longer in a relationship with J.P.
Mother argued against removal, stating there was not clear and convincing evidence of
substantial danger, that the family has a lot of support, and that she has the support of her
tribe, stable housing, and employment. Minors’ counsel argued that mother’s failure to
engage with the Agency demonstrates that she would not follow court orders or comply
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with a case plan if the court returned the children to her care. Counsel for the Agency
outlined the evidence that mother remained in contact with J.P. and was in a relationship
with him, that mother continued to avoid drug testing for the Agency, and that she had
completed a substance abuse assessment through CommuniCare and was referred to
outpatient treatment, indicating a problem with substance abuse.
At the conclusion of the contested hearing, the juvenile court stated it was very
concerned that mother did not drug test for the Agency and went out on her own to drug
test, did not sign a release, and it appeared that the drug tests she submitted were not
observed tests. The court found that under those circumstances, mother’s negative tests
were meaningless and made her suspect mother was using. The court found that the
Agency met their burden with respect to jurisdiction because it was clear that mother was
in some sort of continued relationship with J.P., and the court stated: “It is scary to me
that these kids have to hide from this man, and she has done nothing about it.” The court
found, by a preponderance of evidence, that the allegations in the petition were true and
took jurisdiction over the minors. The court went on to find by clear and convincing
evidence that continued physical custody by mother was likely to cause serious emotional
or physical harm to the children, there were no reasonable means to protect them without
removing them from her, and that active efforts were made to prevent the breakup of the
Indian family. The court then ordered that all of mother’s drug testing must be done at
CommuniCare. The court further ordered that a portion of mother’s visits were to be
supervised by the Agency and the Agency could only increase her visits once they had
been able to supervise some of her visits.
Mother filed a notice of appeal.
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DISCUSSION
I
Sufficient Evidence to Support Jurisdictional Findings
Mother contends the juvenile court did not have substantial evidence to support
the finding under section 300, subdivision (b)(1) that the children suffered, or were at
substantial risk of suffering, serious physical harm or illness because of any current
substance abuse by mother or reoccurring domestic violence between mother and J.P.
We disagree.
“[B]efore courts may exercise jurisdiction under section 300, subdivision (b) there
must be evidence ‘indicating the [minor] is exposed to a substantial risk of serious
physical harm or illness.’ ” (In re Janet T. (2001) 93 Cal.App.4th 377, 388, fn. omitted,
quoting In re Rocco M. (1991) 1 Cal.App.4th 814, 823, abrogated on other grounds by In
re R.T. (2017) 3 Cal.5th 622, 624, 629.) That is, section 300, subdivision (b)(1) requires
evidence of three elements: “(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., supra, at p. 820; In re R.T.,
supra, at p. 624 [concluding first clause of section 300, subdivision (b)(1) “authorizes
dependency jurisdiction without a finding that a parent is at fault or blameworthy for her
failure or inability to supervise or protect her child”].) “The purpose of section 300 is to
protect children from parental acts or omissions that place them at a substantial risk of
suffering serious physical harm or illness. (§§ 300, subd. (b), 300.2.) Although there
must be a present risk of harm to the minor, the juvenile court may consider past events
to determine whether the child is presently in need of juvenile court protection.
[Citation.] The California Supreme Court has observed that, depending upon the
circumstances, a ‘past failure [can be] predictive of the future.’ [Citation.]” (In re A.F.
(2016) 3 Cal.App.5th 283, 289.)
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We review a juvenile court’s jurisdictional and dispositional findings for
substantial evidence. (In re D.C. (2015) 243 Cal.App.4th 41, 51, superseded by statute
on other grounds as stated in In re A.M. (2020) 47 Cal.App.5th 303, 322.) “Issues of fact
and credibility are questions for the trial court and not the reviewing court. The power of
the appellate court begins and ends with a determination as to whether there is any
substantial evidence, contradicted or uncontradicted, which will support the conclusion
reached by the trier of fact.” (In re Christina T. (1986) 184 Cal.App.3d 630, 639.)
Here, the petition alleged as part of the section 300, subdivision (b) allegations
that the minors had suffered, or were at substantial risk of suffering, serious physical
harm or illness due to mother’s long history of substance abuse, her failure to drug test,
her failure to protect the children from domestic violence in the home, and her continued
relationship with J.P., despite his substance abuse and domestic violence. There is ample
evidence to support those allegations.
Mother has a long-standing and serious problem with methamphetamine abuse
dating back to when she was 16 years old, including during her pregnancies with both
minors. Her substance abuse resulted in two prior child welfare cases and the children’s
previous removal from her care. The grandmother contacted the Agency and reported
that she was very concerned because mother’s friend who had been staying with her had
left the home due to mother actively using methamphetamine. And while she was not
court-ordered to drug test, she repeatedly agreed to comply with the Agency’s and the
tribe’s requests, but evaded supervised drug testing. Despite agreeing to multiple
appointments to drug test, mother instead provided negative test results from another
facility, but the social worker could not verify the results as mother had not signed a
release of information and the tests were not observed as she had been asked to do.
Mother completed a substance abuse assessment through CommuniCare and was referred
to outpatient treatment, indicating a problem with substance abuse. Further, the reported
domestic violence incident involved J.P. smoking methamphetamine in the garage while
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the children were home. Cumulatively, this was sufficient evidence to support the
juvenile court’s findings.
There also was sufficient evidence to support the court’s findings that mother had
continued a relationship with J.P. According to the children’s reports to the social
worker, even after the minors were detained from her, mother had indicated to them that
she was still speaking to J.P. and gave them a toy that she said was from J.P. Further, she
misrepresented her relationship with J.P. to the Agency. On January 20, 2021, mother
reported that she was no longer in a relationship with J.P., and he had not been in the
home since the domestic violence incident on December 8, 2020. However, on January
20, 2021, J.P. stated that they were still in a relationship and that he was still residing in,
and sleeping at, the home with mother. This was confirmed when both mother and J.P.
admitted they were sleeping in the same bed the night their infant died. There was no
indication that J.P. had stopped using methamphetamine or that he had sought substance
abuse treatment since the domestic violence incident, and yet mother continued to allow
him to stay in the home and place her children at risk. The children repeatedly indicated
they were afraid of J.P. and hid from him, which the juvenile court properly considered in
evaluating whether there was a substantial risk of harm. Mother did not testify at the
hearing or present any evidence to rebut this evidence except a receipt showing she
changed her locks, which does not necessarily imply she was no longer in a relationship
with J.P.
Here, the children have suffered by being exposed to domestic violence, and the
juvenile court should not have to wait until the children are seriously abused or injured to
assume jurisdiction and take steps to protect the children. (In re T.V. (2013) 217
Cal.App.4th 126, 133.) Additionally, mother’s history of substance abuse and lack of
cooperation with the Agency was appropriately considered by the juvenile court in
determining that the children needed the court’s protection. (Ibid.) Here, mother’s past
conduct indicates sufficient reason to believe her conduct would reoccur, particularly in
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light of her unwillingness to drug test, her dishonesty about her relationship with J.P., and
her refusal to cooperate with the Agency or her own tribe.
For the foregoing reasons, we conclude there was substantial evidence to support
each of the elements for assumption of jurisdiction under section 300, subdivision (b)(1).
II
Substantial Evidence to Support Removal of Minors
Mother also contends there was insufficient evidence to support the juvenile
court’s dispositional order removing the minors from her custody under section 361,
subdivision (c). We again disagree.
Under section 361, subdivision (c)(1), a dependent child may not be taken from
the physical custody of the parents with whom the child resides at the time the petition
was initiated unless the juvenile court finds by clear and convincing evidence “[t]here is
or would be a substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned home, and there are no
reasonable means by which the minor’s physical health can be protected without
removing the minor from the minor’s parent’s . . . physical custody.” (§ 361, subd.
(c)(1).) “A removal order is proper if it is based on proof of (1) parental inability to
provide proper care for the minor and (2) potential detriment to the minor if he or she
remains with the parent. [Citation.]” (In re T.W. (2013) 214 Cal.App.4th 1154, 1163.)
In an ICWA case, the court also needs to find by clear and convincing evidence,
including testimony of a qualified expert witness, that the continued custody of the child
by the parent or Indian custodian is likely to result in serious emotional or physical
damage to the child. (§ 361, subd. (c)(6); In re A.L. (2015) 243 Cal.App.4th 628, 645.)
“The jurisdictional findings are prima facie evidence that the child cannot safely remain
in the home. [Citation.] The parent need not be dangerous and the child need not have
been actually harmed for removal to be appropriate. The focus of the statute is on
averting harm to the child. [Citations.] In this regard, the court may consider the
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parent’s past conduct as well as present circumstances. [Citation.]” (In re Cole C. (2009)
174 Cal.App.4th 900, 917.) When the ICWA applies, the court’s findings are reviewed
for supporting evidence which is “ ‘reasonable, credible and of solid value.’ ” (In re
Barbara R. (2006) 137 Cal.App.4th 941, 950.) The record is reviewed in a light most
favorable to the prevailing party and the trial court’s findings shall be upheld unless no
rational factfinder could reach the same conclusion. (Ibid.)
We conclude there is substantial evidence in the record to support the juvenile
court’s removal order. As a preliminary matter, the ICWA requirements were satisfied in
this case because a qualified Indian expert provided testimony supporting both the active
efforts finding and removal of the children. As previously discussed in part I of this
opinion, there was substantial evidence demonstrating mother’s substance abuse issues
and relationship with J.P. prevented her from providing proper care and supervision to
the minors, placing them at substantial risk of suffering physical and emotional harm.
Mother’s history of methamphetamine abuse, failure to drug test, failure to avail herself
of opportunities to address substance abuse issues, and her continued relationship with
J.P., despite his methamphetamine use and domestic violence, supported the court’s
conclusion that the children would be at substantial risk of danger and that the continued
custody of the children by mother would be likely to result in serious emotional or
physical damage to the children.
The other factors cited by mother regarding her housing, employment, and tribal
support do not outweigh the substantial risk posed in the case from substance abuse and
domestic violence. She failed to protect her children from witnessing the 2020 domestic
violence incident despite her housing and employment. Similarly, the support of the tribe
does little to mitigate the risk to the children when mother failed to cooperate with the
tribal representatives on drug testing. The tribal representative that provided the expert
testimony under the ICWA believed that the children would be in danger of physical or
emotional harm if returned to mother. Further, given mother’s failure to cooperate with
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the Agency’s efforts to assist her with substance abuse and getting appropriate care, it is
not clear that the provision of services would allow the children to safely return to mother
at this juncture.
For the foregoing reasons, we conclude that there was substantial evidence to
support the finding that the children were at substantial risk and that continued custody
was likely to cause the children serious emotional or physical damage. (§ 361, subd.
(c)(1) & (6).) Accordingly, the juvenile court did not err in removing the minors from
mother’s custody.
III
Reasonable Alternatives to Removal
Mother contends the juvenile court did not address reasonable alternatives to
removal. We disagree.
As we have discussed, a dependent child may not be removed unless “there are no
reasonable means by which the minor’s physical health can be protected without
removing the minor from the minor’s parent’s . . . physical custody.” (§ 361, subd.
(c)(1).) The right to the care and custody of one’s child is a fundamental right protected
by constitution and statute. (In re Henry V. (2004) 119 Cal.App.4th 522, 525.) The law
requires that a child remain in parental custody unless the court is clearly convinced that
such a disposition would harm the child. (Ibid.)
Courts have recognized that less drastic alternatives to removal may be available
in a given case, including returning a minor to parental custody under stringent conditions
of supervision by a human services agency, such as unannounced visits. (In re Henry V.,
supra, 119 Cal.App.4th at p. 529; In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.)
In this case, for the reasons we have discussed, the court had sufficient evidence to
support its finding that there were no reasonable means that could protect the minors
without removing them from the home. The Agency already had made extensive efforts
to try to work with mother without having to remove the children. The Agency first
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attempted a safety plan without removing the children by having the children remain at
the grandmother’s home while trying to verify if mother was clean and sober. The
Agency scheduled a CFT meeting and tried to assess options short of removal, but
mother declined to participate. Even after the children were removed, mother refused to
drug test, refused to talk to the social workers, and refused to attend the CFT meeting.
The tribe reported a similar lack of cooperation. Mother did not testify at the contested
jurisdiction and disposition hearing to explain her behavior or assure the court that she
would cooperate with the Agency. In the absence of any level of cooperation by mother,
it was not possible to return the children to mother’s care with a safety plan. Mother
suggests close supervision would be an adequate safeguard. However, the level of
supervision necessary would not be a reasonable alternative to removal given mother’s
pattern of destructive behavior, involvement in substance abuse, and lack of
understanding of the risks to the minors posed by those behaviors.
We conclude substantial evidence supports both the juvenile court’s order
removing the minors from the home and the court’s finding that there were no other
reasonable alternatives to protect the minors.
DISPOSITION
The orders of the juvenile court are affirmed.
KRAUSE , J.
We concur:
MURRAY , Acting P. J.
HOCH , J.
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