In re D.C. CA4/1 ( 2014 )

Filed 10/24/14 In re D.C. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re D.C., a Person Coming Under the
Juvenile Court Law.
D066079
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. CJ1163)
Plaintiff and Respondent,
v.
CIERRA C.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Laura J.
Birkmeyer, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Erica R. Cortez, Deputy County Counsel, for Plaintiff and Respondent.
Cierra C. appeals from a judgment declaring her son D.C. a dependent of the
juvenile court under Welfare and Institutions Code section 300, subdivision (b)1 and
removing D.C. from her custody.2 Cierra contends there was insufficient evidence to
support the juvenile court's findings that there was a risk of harm to D.C. if he were
returned to her custody and that there was no reasonable alternative to removal. Cierra
also contends there was insufficient evidence to support the court's order requiring that
her visitation with D.C. be monitored. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 4, 2014, the San Diego County Health and Human Services Agency (the
Agency) filed a petition on behalf of three-week-old D.C. under section 300, subdivision
(b) alleging that on the day he was born, D.C. tested positive for amphetamine and/or
methamphetamine and marijuana, and Cierra tested positive for the same substances.
The petition further alleged that Cierra denied using drugs after she discovered she was
pregnant, but admitted to a history of use. On four occasions she failed to submit to drug
testing requested by Agency. The alleged father admitted to drug use and tested positive
for the same substances on March 17, 2014. Both parents admitted to having two
incidents of domestic violence with each other—Cierra was arrested for inflicting
corporal injury in October 2013 and the father was arrested for battery on the mother in
1 All further statutory references are to the Welfare and Institutions Code.
2 In a dependency case, the disposition order is the first appealable order and
constitutes the judgment in the case. (In re S.B. (2009) 46 Cal.4th 529, 532; In re Melvin
A. (2000) 82 Cal.App.4th 1243, 1250.)
2
February 2014. The petition alleged that "the parents remain in contact with each other
while the child is present and are untreated for substance abuse and domestic violence[,]
and there is a substantial risk that the child will suffer serious physical harm or illness."
In the Agency's detention report, social worker Hongsing Phou stated when he
interviewed Cierra in the hospital the day D.C. was born, Cierra denied drug use and did
not have a plausible explanation for her and D.C.'s testing positive for drugs. Cierra
admitted she had smoked cigarettes and marijuana, but said she stopped smoking when
she was told she was pregnant at the sixth month of her pregnancy. Phou told Cierra she
would not have tested positive for marijuana if she had stopped smoking it then, but
Cierra was adamant that she had stopped smoking marijuana when she learned she was
pregnant three months before D.C. was born.
Regarding the positive tests for amphetamine, Cierra told Phou that approximately
six days before D.C.'s birth, she had an ear ache and asked the alleged father to get her
some Tylenol. The father brought her some pills that he claimed were a generic Tylenol
he had received from the paternal grandfather's friend. Cierra did not believe the father
would give her drugs knowing she was pregnant, but after she took the pills she felt sick
and fell asleep. She said she had used methamphetamine in the past but not since May
2013. A doctor at the hospital where D.C. was born reported that Cierra had tested
positive for amphetamine and THC (tetrahydrocannabinol) in August 2013. Phou
reported that Cierra's "claims that [D.C.'s positive drug test] was a result of the Tylenol
are unfounded. Tylenol or Tylenol with codeine does not contain
amphetamine/methamphetamine or marijuana."
3
Phou interviewed the alleged father in the home on March 17. The father said that
Cierra was not currently abusing any drugs and that he did not allow her to use drugs
once they learned she was pregnant. When Phou asked the father about his own drug
abuse, he admitted he had used "speed" before Phou came to the home. The father tested
positive that day for marijuana, amphetamine, and methamphetamine.
The Agency allowed Cierra to take D.C. home and created a safety plan to allow
him to remain in the home pending completion of an investigation by the Agency. The
safety plan included Cierra's agreement to submit to drug testing on demand. The
Agency asked Cierra to drug test on March 27, March 28, April 1 and April 2, but she
failed to test on each of those dates. The excuses Cierra gave Phou for failing to test
were that (1) the stitches from her cesarean section came out and she was in a lot of pain
and could not walk; (2) D.C. had an appointment with a pediatrician; (3) the weather was
too cold for D.C. to be out; and (4) she could not find a ride. Phou offered to take Cierra
to the drug test location and gave her two bus passes. On April 4, 2014, the Agency
obtained a protective custody warrant and detained D.C. at Polinsky Children's Center.
The next day he was placed in a licensed foster home.
At the detention hearing on April 7, 2014, Cierra's counsel told the court that
Cierra was planning to begin a substance abuse program the next day and was committed
to doing whatever it took to get her son back. On behalf of Cierra, counsel requested
"any and all voluntary referrals from the social worker above and beyond substance
abuse" and suggested "a domestic violence or healthy relationship referral . . . ." The
court found a prima facie showing had been made that D.C. was a person described by
4
section 300, subdivision (b), and ordered him detained in licensed foster care or the home
of an approved relative or nonrelative extended family member. The court granted Cierra
liberal supervised visitation and ordered her not to be under the influence of alcohol or
drugs while visiting D.C. The court also ordered that the alleged father not be present
during Cierra's visitation. Cierra visited D.C. the day after the detention hearing, but
failed to show for three additional scheduled visits later in April.
Social worker Jose Padilla prepared the Agency's jurisdiction/disposition report.
Padilla reported that Cierra failed to show up for two scheduled jurisdiction/disposition
interviews with him. When Padilla called Cierra to ask why she missed the second
interview appointment, Cierra told him she would not be meeting with him and did not
understand why D.C. had been removed from her. Cierra continued to deny using
marijuana and methamphetamine during the last three months of her pregnancy and did
not know why D.C. tested positive for those drugs. She thought marijuana might still be
in her system from several months ago and because she was around a lot of people who
smoked it. She denied any current drug use. Padilla asked if she was willing to drug test
that day and she said she needed to consult her attorney before drug testing. Padilla
asked to reschedule the jurisdiction/disposition interview but Cierra refused. She told
him she just wanted her baby back and would see him in court.
Cierra failed to show up for drug test appointments on April 11 and April 15,
2014, even though Padilla had informed her that her failure to test on April 15 would be
considered a positive test. Cierra again refused to drug test for the Agency on April 17.
Padilla concluded that Cierra and the alleged father both had a substance abuse problem
5
that they needed to address through treatment. Their drug use impaired their ability to
adequately and safely parent D.C., and it appeared they were "not supporting each other
in efforts of sobriety." Padilla also reported the Agency's concern that the parents would
continue to engage in domestic violence in D.C.'s presence, which would put D.C. in
"physical and emotional harm's way."
Padilla filed an addendum report in which he discussed a meeting he had with
Cierra at court on May 12, 2014. Padilla asked Cierra if she had changed her mind about
visiting D.C.3 Cierra said she did not want to visit D.C. until she got him back. Padilla
explained that visitation was part of the reunification process. Cierra said she understood
that but was hoping the Agency would just return D.C. to her or she would "win" the trial
(i.e., the contested jurisdiction/disposition hearing) and get him back. She said it was too
hard for her to see him and not be able to take him home, and that it would be hard on
D.C. to see her and not be able to go home with her. Padilla asked Cierra what she was
doing with her time. She said all she did was cry and miss her baby.
Padilla asked Cierra why she had failed to appear for a drug test on April 29.
Cierra said she did not trust the Agency or the staff at the drug testing site and felt they
would "lie" on her drug test. She denied using drugs. Padilla noticed Cierra's eyes were
red and glossy and her jaw was moving slightly, and he could hear suction noises coming
from her mouth. He asked her if she was under the influence of drugs and she said, "No."
Padilla asked her to drug test that day and told her that a "no show" to the test would be
3 Cierra apparently had told Padilla that she was not going to visit D.C.
6
considered a positive test. He also asked her to talk to the drug abuse specialist at the
court. Cierra responded, "No, I won't go talk to her. I don't have a drug problem. I just
want my baby back." Cierra said she did not trust Padilla or her attorney, and felt that her
attorney was "working for you guys."
Padilla reported that Cierra continued to contact the alleged father. D.C.'s foster
mother shared with Padilla an exchange of hostile text messages between Cierra and the
father that Cierra initiated and accidentally sent to both the foster mother and the father.
At the contested jurisdiction/disposition hearing on May 22, 2014, the court
admitted in evidence the curricula vitae of Phou and Padilla and the Agency's detention
report, jurisdiction/disposition report, and addendum report. The court also heard
testimony from Phou and Cierra. The court found by clear and convincing evidence that
the allegations in the petition were true and declared D.C. a dependent of the court. The
court ordered D.C. removed from Cierra's custody and directed the Agency to provide
Cierra reunification services. The court further ordered drug testing for Cierra and
ordered her to participate in substance abuse treatment and undergo a psychological
evaluation.
DISCUSSION
I. Dispositional Findings
Cierra contends there was insufficient evidence to support the juvenile court's
findings that there was a risk of harm to D.C. if he were returned to her custody and that
there was no reasonable alternative to removal.
7
To remove D.C. from Cierra's parental custody, the court was required to find by
clear and convincing evidence that "[t]here is or would be a substantial danger to [his]
physical health, safety, protection, or physical or emotional well-being . . . if [he] were
returned home" and that removal was the only reasonable means of protecting his
physical health (§ 361, subd. (c)(1)). "The parent need not be dangerous and the minor
need not have been actually harmed before removal is appropriate. The focus . . . is on
averting harm to the child." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.) The
court is entitled to consider the parents' past conduct and current situation and gauge
whether they have progressed sufficiently to eliminate any risk. (In re S.O. (2002) 103
Cal.App.4th 453, 461; cf. In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1221.)
On appeal, Cierra has the burden of showing that there is no substantial evidence
justifying removal. (In re Diamond H., supra 82 Cal.App.4th at p. 1135; In re Geoffrey
G. (1979) 98 Cal.App.3d 412, 420.) Evidence is substantial if it is " ' "reasonable,
credible, and of solid value." ' " (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) It is the
trial court's role to assess the credibility of witnesses and resolve the conflicts in the
evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) "We do not evaluate the
credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather,
we draw all reasonable inferences in support of the findings, consider the record most
favorably to the juvenile court's order, and affirm the order if supported by substantial
evidence even if other evidence supports a contrary conclusion." (In re L.Y.L. (2002) 101
Cal.App.4th 942, 947.)
8
We conclude substantial evidence supports the court's removal order. Cierra and
D.C. tested positive for illegal drugs at D.C.'s birth and Cierra admitted she used drugs
during the first six months of her pregnancy. The Agency allowed Cierra to take D.C.
home from the hospital after his birth, despite his and Cierra's positive drug tests, and
created a safety plan that included Cierra's agreement to submit to on-demand drug
testing. However, Cierra repeatedly failed to drug test after D.C.'s birth and appeared to
be under the influence of drugs when she met with Padilla at court 10 days before the
jurisdiction/disposition hearing. Her explanation for testing positive for amphetamine
(taking two unlabeled pills that were supposed to be generic Tylenol six days before
D.C.'s birth) was implausible and did not account for her testing positive for marijuana.
Her explanation for her reluctance to test in the future was her unfounded fear that the
Agency and drug testers would "lie" on her drug test—i.e., report a positive test if she
actually tested negative. Although Cierra consistently denied having a drug problem,
when she was asked on cross-examination at the jurisdiction/disposition hearing why she
had not drug tested, she responded, " . . . I figured if I started [testing], that testing would
be kind of like incriminating myself . . . ." Despite her counsel's representation to the
court at the detention hearing that she was planning to begin a substance abuse program
the next day, as of the time of the jurisdiction/disposition hearing, Cierra had not
participated in any substance abuse treatment services. Based on the evidence regarding
Cierra's substance abuse, denial of drug use, and refusal to drug test, the court could
reasonably find that Cierra wanted D.C. returned to her custody and wanted to continue
to use drugs after his return.
9
The evidence of Cierra's denial of a drug problem after testing positive for
substance abuse and her refusal to undergo further drug testing is itself sufficient to
support the court's findings that there was a risk of harm to D.C. if he were returned to
her custody, and there was no reasonable alternative to removal. The removal order is
further supported by evidence that Cierra remained in contact with the alleged father,
who was a drug abuser, and that both she and the father had engaged in domestic
violence. In the jurisdiction/disposition report, Padilla expressed the Agency's concern
that Cierra and the father would continue to use methamphetamine and other illegal
substances and neglect D.C.'s needs, and that "the parents will continue to engage in
domestic violence in [D.C.]'s presence[,] which will place [D.C. in] physical and
emotional harm's way." The court was entitled to find Padilla's opinion credible, and to
give great weight to his assessment. (In re Casey D., supra, 70 Cal.App.4th at p. 53.)
The court's finding that there was a sufficient risk of harm to D.C. to justify his
continued removal from Cierra's custody was further supported by evidence that Cierra
was suffering from untreated depression. Cierra was diagnosed with postpartum
depression when she was discharged from the hospital after giving birth to D.C. Padilla
reported that 10 days before the jurisdiction/disposition hearing, Cierra told him that that
she had not returned to work "and that all she does is cry and [miss] her baby." At the
jurisdiction/disposition hearing, the court noted Cierra's display of "extreme emotions in
the courtroom and . . . some behavior that would appear to necessitate a psychiatric
10
evaluation of mother."4 The court stated, "I have some real concerns as to whether there
may be some postpartum depression in mother's statements about how she has been
crying constantly . . . . And I want to make sure that she is able to fully engage in her
services." The court ordered a psychological evaluation over Cierra's objection, and
reiterated that it had "been very concerned about [Cierra] and her behavior in the
courtroom and her affect. I note that she has seemed at times almost despondent. There
is quite a bit of crying. There are references in the [Agency's] report to her having long
periods of crying, and the court has significant concerns and would like to get her help
and be properly directed."
The court's removal order was also supported by evidence that although the court
granted Cierra liberal supervised visitation with D.C. and Padilla informed her that
visitation was part of the reunification process, she rarely visited him, failed to show up
for scheduled visits, and ultimately told Padilla that she did not want to visit D.C. until he
was returned to her.
Finally, the removal order was supported by evidence of Cierra's general refusal to
cooperate with the Agency after D.C.'s detention. She refused to meet with Padilla for a
jurisdiction/disposition interview and when she was asked at the jurisdiction/disposition
hearing why she had refused to meet with him since he was assigned to the case, she
testified, "Because . . . I haven't wanted him to twist anymore of my words than he
already has." When she was asked if she would be willing to participate in services that
4 The court orally ordered a "psychiatric" evaluation, but its written order stated that
Cierra "shall undergo a psychological evaluation."
11
the Agency would request if D.C. were returned to her, she equivocally responded, "I
don't know about any services by the Agency. It depends on what you mean by that.
Because . . . I'm really disappointed in the Agency the way that they have handled things
with me, and the things they suggested for me. I don't know. I mean, if it's in my baby's
best interest, of course."
In its oral ruling removing D.C. from Cierra's custody, the court noted, "Even
today, as the court sits here and watched her as to whether she would engage in
appropriate services if the baby were returned to her, I watched the change in mother's
demeanor. She smiled and cocked her head and said[] there were some things that [she]
wouldn't do. She would have to see. [¶] . . . [¶] But I have great concerns, even today as
she sits before the court, whether there would be any services that she would willingly
engage in light of the numerous efforts that the Agency made to engage with her while
the baby was in her care. [¶] And also of concern to the court, and another basis for the
show of reasonable efforts [to prevent or eliminate the need for D.C. removal], is that
mother has been offered, as requested by her counsel, . . . voluntary services. In her view
she doesn't want to engage in that. [¶] . . . Reasonable efforts have been made to prevent
or eliminate the need for removal of her child or the attempt to reunify her prior to this
hearing, and, sadly, mother did not engage." It is well settled that we must defer to the
trial court's factual findings that are based on its assessment of live testimony because
" '[w]e review a cold record and, unlike a trial court, have no opportunity to observe the
appearance and demeanor of the witnesses.' " (In re Luke M. (2003) 107 Cal.App.4th
1412, 1427.)
12
The court's findings that there was a risk of harm to D.C. if he were returned to
Cierra's custody and there was no reasonable alternative to removal are amply supported
by the evidence of Cierra's substance abuse, her denial that she had a drug problem, her
refusal to drug test, her continued contact with the alleged father, her refusal to meet with
the Agency social worker assigned to her case or otherwise cooperate with the Agency,
her untreated depression, and her failure to avail herself of the liberal visitation she was
granted with D.C. Cierra has not met her burden on appeal of showing there is no
substantial evidence justifying removal.
II. Requirement of Monitored Visitation
Cierra contends there was insufficient evidence to support the court's order
requiring that her visitation with D.C. be monitored.5
The appropriate standard of review for custody and visitation orders is abuse of
discretion. (In re S.H. (2011) 197 Cal.App.4th 1542, 1557-1558; In re Robert L. (1993)
21 Cal.App.4th 1057, 1067.) " 'The reviewing court must consider all the evidence, draw
all reasonable inferences, and resolve all evidentiary conflicts, in a light most favorable to
the trial court's ruling. [Citation.] The precise test is whether any rational trier of fact
could conclude that the trial court order advanced the best interests of the child.
[Citation.] We are required to uphold the ruling if it is correct on any basis, regardless of
whether it is the ground relied upon by the trial judge. [Citation.]' [Citation.] The trial
5 The court did not expressly address visitation in its jurisdiction/disposition order.
The court granted Cierra liberal supervised visitation in its detention order and stated in
its jurisdiction/disposition order that "[a]ll prior orders not in conflict remain in full force
and effect." (Capitalization omitted.)
13
court is accorded wide discretion and its determination will not be disturbed on appeal
absent 'a manifest showing of abuse.' " (In re Robert L., at p. 1067.)
The evidence that Cierra abused drugs and denied having a drug problem supports
the court's exercise of discretion to require that Cierra's visitation with D.C. be
monitored. Section 300.2 provides that "[t]he provision of a home 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." In its detention order, the court
specifically ordered Cierra not to be under the influence of alcohol or drugs while visiting
D.C. Cierra repeatedly denied using drugs despite testing positive for them when she
gave birth to D.C.; she refused to undergo drug testing after D.C. was born; and she
appeared to be under the influence of drugs when she met with Padilla at court 10 days
before the jurisdiction/disposition hearing. Considering these circumstances, the court
could reasonably be concerned that if Cierra were granted unsupervised visitation with
D.C., she would be under the influence of drugs during the visitation, which would create
a risk of harm to D.C.'s physical and emotional well-being because there would be no one
to intervene if her substance abuse caused her to neglect or act inappropriately toward
D.C. On this record, Cierra cannot meet her burden of showing that the requirement of
monitored visitation was a manifest abuse of discretion.
14
DISPOSITION
The judgment is affirmed.
BENKE, J.
WE CONCUR:
MCCONNELL, P. J.
NARES, J.
15