In re P.D. CA2/2 ( 2014 )

Filed 10/27/14 In re P.D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 P.D., a Person Coming Under the B253169
Juvenile Court Law.
(Los Angeles County
Super. Ct. No. DK00867)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
VANESSA D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Julie F.
Blackshaw, Judge. Affirmed.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.
Vanessa D. (Mother) challenges the trial court’s order placing her five-year-old
son P.D. (Minor) with his maternal grandmother (Grandmother). We affirm.
FACTS AND PROCEDURAL BACKGROUND
Mother has a drinking problem that dates back more than 20 years, has a history of
methamphetamine use, and has been diagnosed with anxiety and bipolar disorder. She
gave birth to Minor in 2009. Although she remained sober during pregnancy and for
more than a year after his birth, she has since had three relapses. In 2011, she drove
while intoxicated and without properly securing Minor in his car seat; she was
subsequently convicted of willful cruelty to a child, a misdemeanor. She had a second
relapse in late 2012, when she picked up Minor from daycare while drunk. Her third
relapse occurred in 2013, when she drank herself to unconsciousness and awoke hours
later unsure of Minor’s whereabouts. Minor was safe because Grandmother had picked
him up from daycare.
This last incident came to the attention of the Los Angeles County Department of
Children and Family Services (Department). The Department filed a petition seeking to
remove Minor from Mother’s custody due to her substance abuse, her mental health and
emotional problems, and unresolved domestic violence issues with Minor’s biological
father. The trial court concluded at the detention hearing that the Department established
a prima facie case for removal.
The disposition hearing was contested. The Department sought removal due to
Mother’s “extensive history of substance abuse” and “failed attempts at treatment and
sobriety,” which in its view put Minor at “very high risk” of future abuse and negligence.
The Department recognized Mother’s postremoval efforts to remain sober, but argued it
was “too soon” to place Minor back in her care. In opposing removal, Mother took the
stand and also called two of her current treatment counselors who testified to her good
progress.
After hearing the evidence and argument, the court noted that Mother had made
“significant progress in addressing her issues” and asked whether Mother and Minor
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might live with Grandmother. The court adjourned the hearing to determine the
feasibility of this potential option.
When the hearing resumed three weeks later, the court was advised that Mother
and Minor could move in with Grandmother, but that Grandmother did not have room for
their “personal items, clothes, furniture, etc.” With Mother’s still fully furnished
apartment nearby, the court was “worri[ed]” that Mother would “live in her own
apartment with the child” rather than at Grandmother’s house. Consequently, the court
no longer “fe[lt] comfortable” with that option. The court praised Mother for her “true
transformation,” but lacked “complete confidence” in the longevity of that transformation
in light of her “multiple relapses” in the past. So rather than place Minor with Mother
directly, the court opted to set up “appropriate safeguards” by placing him with
Grandmother but allowing Mother unmonitored day visits with a potential for
unmonitored overnight visits.
Mother appealed. (Father is not a party to this appeal.)
DISCUSSION
I. Sufficiency of the Evidence
Under Welfare and Institutes Code section 361, subdivision (c)(1), a child may not
be removed from his parent’s custody unless a court finds, by clear and convincing
evidence, that (1) there would be a “substantial danger” to the child’s “health, safety,
protection, or physical or emotional well-being” if the child were returned home; and
(2) “no reasonable means” short of removal exists to protect the child’s health. We
review removal orders for substantial evidence, ignoring the clear and convincing burden
of proof and giving effect to the Department’s “‘“‘evidence, however slight, and
disregarding [Mother’s] evidence, however strong.’”’” (In re J.S. (2014) 228
Cal. App. 4th 1483, 1493.) The trial court’s order here is supported by substantial
evidence because its findings that Mother posed a substantial risk of relapse and hence a
danger of neglecting Minor is grounded in her prior relapses, including a criminal act that
endangered Minor.
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Mother disputes the evidence supporting each element of Welfare and Institutions
Code section 361, subdivision (c)(1). She argues that she does not pose a substantial
danger to Minor, and cites (1) the trial court’s praise for her progress; (2) the court’s
willingness to let her have unmonitored daytime visits with Minor at Grandmother’s
house; and (3) the decision of In re Hailey T. (2012) 212 Cal. App. 4th 139 (Hailey T.),
disallowing removal.
These arguments do not undermine the trial court’s ruling. The court’s praise for
Mother’s current progress was tempered by the undisputed evidence of her prior relapses.
Further, the court’s willingness to allow unmonitored visits for a period of hours at
Grandmother’s house during the day is not the same as a finding that Minor is safe with
Mother 24 hours a day. Allowing the former while disallowing the latter is consistent
because one is a step toward the other. Hailey T. is distinguishable; there, the court
erroneously used a suspicious injury to one sibling to justify the removal of his sister,
who suffered no abuse. (Hailey T., supra, 212 Cal.App.4th at pp. 146-147.) Mother
asserts more globally that the court’s ruling is speculative, but predictive judgments by
their nature entail some degree of speculation (In re Heather A. (1996) 52 Cal. App. 4th
183, 194-195 [juvenile court need not wait for actual harm before intervening]), and the
judgment here was grounded in the evidence of Mother’s prior relapses.
Mother also argues that the trial court suggested a means short of removal—
having Mother live with Grandmother—that precludes the court from later concluding
that removal was necessary to ensure Minor’s safety. We disagree. The court considered
whether to have Mother move in with Grandmother, not whether to have Mother move in
while maintaining a fully furnished apartment nearby. The court reasonably concluded
that one posed a greater risk that Mother might revert back to living on her own than the
other. This distinction is not arbitrary and is supported by the evidence. Nor does the
record reflect, as Mother asserts, that the court was confused about Grandmother’s
willingness to have Mother and Minor move in with her.
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Mother lastly contends that the court’s ruling, because it lacked any evidentiary
basis, was a smokescreen for inducing Mother to comply with her case plan. Because we
conclude an evidentiary basis exists, we reject this argument.
II. Motion to Reopen
Mother argues that the trial court committed reversible error by refusing to reopen
the evidentiary portion of the dispositional hearing, after issuing its ruling, to allow
Grandmother to testify telephonically regarding the possible living arrangements. The
court rejected Mother’s request, noting that the evidence before it was “adequate.” We
review this ruling for an abuse of discretion. (In re Mary B. (2013) 218 Cal. App. 4th
1474, 1481.) There was no dispute that Grandmother’s house had no room for Mother’s
belongings. Because further testimony from Grandmother on that point would not have
been helpful, the court acted within its discretion in declining to reopen the hearing.
DISPOSITION
The order of the juvenile court is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
HOFFSTADT, J.
We concur:
BOREN, P.J.
CHAVEZ, J.
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