In re A.T. CA4/1 ( 2022 )

Filed 7/19/22 In re A.T. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 A.T., a Person Coming Under
the Juvenile Court Law.
D079980
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J520826)
Plaintiff and Respondent,
v.
M.D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Browder A. Willis III, Judge. Affirmed.
Amy Z. Tobin, under appointment by the Court of Appeal, for
Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff
and Respondent.
Infant A.T. was detained at birth after his umbilical cord tested
positive for amphetamine and methamphetamine, among other substances,
and M.D. (Mother) tested positive for amphetamine and methamphetamine.
Mother appeals the juvenile court’s order following a contested adjudication
and disposition hearing in which the court removed A.T. from Mother’s care
and placed him in a licensed foster home. Mother contends there was not
substantial evidence to support the juvenile court’s removal order and there
were reasonable alternative means to protect A.T. We disagree and affirm
the order.
BACKGROUND
A. Family History
Mother and L.T. have known each other for over 10 years. L.T.
(Father) was determined to be A.T.’s biological father.1 They are not
married, but Mother and three other children commuted between the central
valley of California and Father’s home in Mexico every week or two before
A.T. was born. Mother has two older children who reside with Mother’s adult
daughter in another state.
Mother learned she was pregnant with A.T. when she was five and a
half months pregnant. She reported having one prenatal examination in the
central valley of California and one at a clinic in Mexico. She said she was
tested for preeclampsia at a San Diego hospital and had an emergency
caesarian section at 32 weeks.
1 Father initially denied being A.T.’s biological father, saying he believed
he was being extorted. Mother gave inconsistent stories about A.T.’s
paternity, but later admitted that she said L.T. was not A.T.’s father because
she was upset with a prior social worker. A paternity test confirmed L.T. was
A.T.’s biological father.
2
After A.T. was born at the end of July 2021, he received care in a
neonatal intensive care unit (NICU). The Agency received a report that
Mother had no prenatal care and she tested positive for amphetamines at
birth. A.T.’s umbilical cord tested positive for amphetamines and
methamphetamines, as well as several other substances that could not be
accounted for by medications provided to Mother in the hospital. Mother
denied using methamphetamine, but said she occasionally smoked marijuana
before she learned she was pregnant. She took some medications during her
pregnancy for preeclampsia. She said she smoked “a few tokes” from a pre-
rolled “blunt” about a month before delivery. She did not believe there was
methamphetamine in the blunt, but she had no other explanation. Mother
said she was willing to do “whatever the agency wants,” but did not believe
she needed substance abuse treatment.
A few days after A.T.’s birth, the Agency received a report with
concerns that Mother could not care for the newborn child. The reporting
party said that Mother was known in the community as a substance user and
that two of her children were previously removed by another county. The
reporting party said there was no gas or electricity in the home for several
months because the family could not pay their bills. The reporting party said
a one-year-old sibling was sick and could not walk and that two older siblings
did not attend school. Because these children were outside the jurisdiction, a
cross report was made to the International Liaisons Office.
B. Initiation of Dependency Proceedings
The Agency filed a petition on August 11, 2021, alleging that A.T. was a
child within the jurisdiction of the juvenile court under Welfare and
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Institutions code section 300, subdivision (b),2 because he suffered or was at
a substantial risk of suffering serious physical harm or illness due to his
positive test for amphetamine and methamphetamine and Mother’s positive
test for methamphetamine and amphetamine.
In the detention report, the Agency reported that Mother historically
used substances during her pregnancies and evaded Agency contacts. Mother
tested positive for marijuana when she delivered a previous child. The
Agency was concerned that A.T. would be exposed to Mother’s drug use and
that his basic needs could be neglected.
Prior allegations of general neglect regarding a sibling approximately a
year earlier were closed as inconclusive by another county. That child was
also born premature and was placed in the NICU. Mother had difficulty
visiting consistently due to health and transportation problems. She bonded
well with the child when she visited. Later, there were concerns about
whether Mother was following up with important medical care for the child.
General neglect allegations regarding Mother’s older children missing school
or being home alone were evaluated out by another county approximately 10
years earlier.
The Agency did not believe Mother was appropriate for voluntary
services. A social worker advised Mother in 2018 to meet with a substance
abuse specialist to address her drug use. Mother said in early August 2021
that she contacted a substance abuse specialist, but she had not completed
screening at the time of the report. Mother did not admit to using
methamphetamine or acknowledge a need for treatment.
2 All further statutory references are to the Welfare and Institutions
code.
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C. Detention Hearing
Mother appeared remotely at the detention hearing on August 12,
2021. She disrupted the proceedings by talking over the judge, disputed
comments about L.T. being A.T.’s father, and stated she was recording the
proceeding, which the court informed her was a violation of the
confidentiality of the proceedings. When Mother continued to be disruptive
after several warnings, the court disconnected her and gave her attorney an
opportunity to contact her. Mother was suspicious of the proceedings and
hung up on the attorney. When court reconvened, Mother said she was still
recording the proceedings and intended to turn the recordings in to the police.
The court continued the hearing to the afternoon and ordered Mother to
appear in person. She did not do so.
Because there was a concern about whether Mother resided in Mexico,
the court took temporary emergency jurisdiction and found that the Agency
made a prima facie showing that A.T. was a child described by section 300,
subdivision (b). The court commented that the child was born premature,
weighing just over three pounds. Mother’s toxicology screen was positive for
amphetamine and the child’s toxicology screen was positive for
methamphetamine and amphetamine. There was also a report that Mother
was a long-time substance abuser and lived in unsafe conditions. The court
found that removal of A.T. from his parents was necessary due to a
substantial danger to the physical health of the child and there were no
reasonable means to protect the child’s physical or emotional health without
removal from the parents’ custody. The court ordered A.T. detained out of
the home.
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D. Jurisdiction and Disposition Period
The social worker authorized supervised visits for Mother in the NICU,
but Mother did not visit. She said she watched A.T. on the NICU monitor
and called to check on him daily.
The social worker requested that Mother drug test on August 26, 2021.
Mother did not do so. She later said she was confused about the date. The
social worker requested that Mother complete a hair follicle test by
September 3, 2021. Mother agreed, but did not do so.
Mother denied being a drug addict. Her parents were drug addicts and
were not involved in her life as parents. She was raised by a grandmother
and she experienced physical, sexual, and emotional abuse. She said she
would not put her children in that position.
Mother denied being involved in a child welfare case in the past, but
admitted that she had referrals. She thought A.T. would be safe in her home
and denied the need for services. However, she said she was willing to
participate in recommended services. Mother said she did not contact a
substance abuse specialist in August due to transportation difficulties and
she was unable to call.
The social worker encouraged Mother to participate in voluntary
services to prevent delays in reunification. She explained the Agency would
recommend substance abuse treatment, random drug testing, parenting
classes, and individual counseling. Mother wanted A.T. placed with her and
said she would participate in services when A.T. was in her care. The social
worker submitted therapy referrals for Mother and submitted a request to
locate a drug testing site and parenting classes for Father in Mexico through
the International Liaisons Office.
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The parents participated in a child and family team meeting on
September 10, 2021. Mother continued to deny using methamphetamine and
stated that the drug tests at the hospital did not make sense. She had not
followed through with drug testing and said it was unnecessary because she
does not use drugs. She thought if she took a drug test it would amount to
admitting that she has a drug problem. The Agency and Mother’s supports
encouraged her to cooperate, but Mother pushed back saying “what’s the
point.” The social worker submitted requests for substance abuse treatment,
drug testing, parenting classes, and therapy services in Mexico.
At the jurisdiction and disposition hearing, the parents requested a
trial on the truth of the allegations and disposition. Mother asked for
placement of the child with her and Father in Mexico and for family
maintenance services to be provided in Mexico. Since Father is unable to
travel to the United States, he requested visits at the border if A.T. were not
placed with them. The court assumed subject matter jurisdiction of the case
because authorities from the Republic of Mexico did not respond to
notifications about the case. The court set the matter for a contested
adjudication and disposition hearing.
A.T. was placed in a licensed foster home after his discharge from the
hospital. The caregiver reported in late September and early October 2021
that communication with the parents was difficult due to the use of an
international phone number. Mother missed visits and was not calling or
asking for video calls. The caregiver tried connecting with the parents
through a social media platform. The social worker encouraged Mother to
attend scheduled visits and made a referral for Mother to visit at a family
visitation center. However, Mother frequently canceled, did not appear, or
was late to visits.
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In late October 2021, the social worker again encouraged Mother to
begin participating in services, including in-person substance abuse
treatment, to prevent delays in reunification. The social worker confirmed
the Mother had not followed through with prior drug tests and again
requested that she complete a hair follicle test. Mother did not do so.
Mother did not test as requested in November or December 2021. She
picked up referral information only a week before the scheduled contested
hearing, even though it had been available for two months.
The Agency remained concerned that Mother used methamphetamine
while pregnant resulting in positive toxicology tests for both her and A.T.
Mother did not demonstrate insight into the protective issues, continued to
deny substance abuse, did not comply with repeated requests for testing, and
had not started any services. Her visits with A.T. were inconsistent.
E. Contested Adjudication and Disposition Hearings 3
The court received the Agency’s detention report, the jurisdiction report
and two addendum reports.
The social worker testified on cross examination that Mother’s
interactions with A.T. were loving and appropriate during visits.
Father denied knowing that Mother used illegal substances. He said
he saw Mother two or three times a month when she was pregnant with A.T.
and she lived with him after this case began. Father described Mother as a
great mother and said she did not need a parenting class. He said he would
obey court orders, support Mother in getting into a treatment program, or
3 The contested adjudication and disposition hearing was continued to
December to complete Father’s paternity testing. It commenced virtually on
December 17, 2021, but was suspended due to communication difficulties.
The hearing was completed on January 20, 2022.
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take courses to recognize when someone is under the influence of drugs. He
said they have electricity and running water at his home.
Mother testified on her own behalf. Mother stated she sought prenatal
care, but did not discover she was pregnant until she was over five months
pregnant. She said she had a prenatal check-up in the central valley of
California.
Mother had no explanation for why she and A.T. tested positive for
methamphetamines. She denied using methamphetamine or alcohol. She
testified that she had transportation difficulties for drug testing. She also
said she felt as though testing to prove she was clean and sober amounted to
admitting that she had a drug problem, which she denied. She understood
from the child and family team meeting that a clean drug test would not
change her child’s placement and she would have to participate in services
anyway. Mother said she would drug test and participate in services if A.T.
were placed with her and the services were mandatory.
Mother picked up referral information for services at the end of
November 2021, but she had not started services at the time of the hearing in
January 2022. Mother stated she visited A.T. about 10 times in person since
he was born and attended virtual visits twice a week.
Mother asked for A.T. to be placed in her care, saying he should be with
his family. She said she would participate in any recommended services if
her son could be with her, including drug testing.
In rebuttal, the social worker said the caregiver reported the parents
were only able to visit A.T. virtually about once per week due to connection
issues. The social worker stated she provided Mother with drug testing
referrals in Mexico. The worker also submitted referrals for transportation
passes, but Mother did not pick them up.
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The social worker expressed concern about placing A.T. in Mother’s
care because, without Mother’s cooperation with voluntary drug testing, the
Agency could not assess that there was no substance abuse occurring in the
home. The only information available at the time was the positive drug test
from July 2021.
After considering the evidence and the testimony, the court found
jurisdiction under section 300, subdivision (b). The court found the only
inference it could draw from the uncontroverted positive tests for both
Mother and A.T. was that there was methamphetamine use. The court
determined that there was credible evidence that the medication Mother was
given at the time of delivery would not produce the positive results. The
court found there was harm to the child as a result of the drug use.
The court found Mother made no progress toward alleviating or
mitigating the causes necessitating placement and that there was clear and
convincing evidence that A.T. should continue to be removed from Mother
because there was a substantial danger to the physical health, safety,
protection or physical or emotional well-being of A.T. and there was no
reasonable means by which he could be protected without removal. The court
ordered A.T. placed in a licensed foster home.
The court admonished mother to participate in services and of the
importance of providing drug testing to get A.T. back in her care.
DISCUSSION
Mother does not challenge the juvenile court’s jurisdictional finding,
but contends there was not substantial evidence to support the court’s
removal order and that there were reasonable alternatives to removal.
Once the court exercises jurisdiction over a minor, “it must decide the
appropriate disposition. Generally, the court chooses between allowing the
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child to remain in the home with protective services in place and removing
the child from the home while the parent engages in services to facilitate
reunification.” (In re E.E. (2020) 49 Cal.App.5th 195, 205 (E.E.).) To order
removal of a child from parental custody, the juvenile court must find clear
and convincing evidence that “[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).) The court must also determine if “reasonable efforts were made
to prevent . . . the need for removal” and “state the facts on which the
decision to remove the minor is based.” (§ 361, subd. (e).)
“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.” (In re D.B. (2018) 26 Cal.App.5th 320, 328
(D.B.).) The court may consider the “parent’s past conduct as well as present
circumstances.” (Id. at p. 332, citing In re Cole C. (2009) 174 Cal.App.4th
900, 917.)
We review the court’s removal order for substantial evidence, bearing
in mind the heightened clear and convincing evidence standard of proof. (In
re Kristen H. (1996) 46 Cal.App.4th 1635, 1657; see Conservatorship of O.B.
(2020) 9 Cal.5th 989, 995-996 (O.B.).) The question before us is “whether the
record as a whole contains substantial evidence from which a reasonable
factfinder could have found it highly probable that the fact was true.” (O.B.,
supra, at p. 1011.) We “must view the record in the light most favorable to
the prevailing party below and give appropriate deference to how the trier of
fact may have evaluated the credibility of witnesses, resolved conflicts in the
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evidence, and drawn reasonable inferences from the evidence.” (Id. at
pp. 1011–1012.) The “appellant has the burden to demonstrate there is no
evidence of a sufficiently substantial nature to support the findings or
orders.” (D.B., supra, 26 Cal.App.5th at pp. 328–329.)
The juvenile court here considered that A.T. was less than a year old
and did not have the ability to speak for himself. If A.T. were returned to the
parents’ care, the court stated it did “not have any evidence that the child
would be adequately protected, either from substance abuse by Mother or
from Father who would act to protect a child against the substance abuse or
use of drugs by Mother.”
Contrary to Mother’s contention, the juvenile court considered
alternatives to removal. The court considered Mother’s request to return A.T.
to her care with a family maintenance program. However, the court
determined that the Agency’s recommendation for continued removal was
reasonable considering the positive drug tests, which were not mitigated with
subsequent testing.
The court found that the “Agency exercised reasonable efforts to
prevent or eliminate the need for removal by directing Mother to have drug
testing. At least five tests were offered or directed, and she did not make
those tests for various reasons. And since drugs are the underlying issue, it
is clear to this court that . . . that issue [has] not been mitigated. And the
need for removal is based on that fact.” As a result, the court found there
was clear and convincing evidence of a nexus between risk of harm related to
drug use and lack of drug testing. Because there was no evidence Mother
had mitigated this condition, there was a substantial danger to the health,
safety and welfare of the child and there was no reasonable means to protect
the child short of removal and placement in licensed foster care.
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Substantial evidence supported the court’s findings. It is undisputed
that Mother and A.T.’s umbilical cord tested positive for drugs at birth. The
court found the Agency presented credible evidence that the medications
provided to Mother in the hospital would not result in positive tests for
amphetamine or methamphetamine. The Agency also received a report that
Mother was known to use substances. Mother acknowledged that she uses
marijuana to help with headaches and that she tested positive for marijuana
when she gave birth to another child a year earlier.
Mother agrees that this evidence supports the court’s order, but claims
it is not enough to support the order for removal. We disagree. The use of
drugs while pregnant “unquestionably endanger[ed] the health and safety of
her unborn child.” (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217
(Christopher R.).) A parent’s implausible denial of drug use during
pregnancy along with resistance to monitoring and services reasonably
support a finding that the parent is unable to provide a safe home for a child.
(E.E., supra, 49 Cal.App.5th at p. 215; Christopher R., supra, at pp. 1219–
1220 [persistent use of marijuana supported a finding of inability to provide
care for an infant].)
Although Mother claimed she would participate in services, including
drug testing, if the child were returned to her care under supervision, the
court found that Mother did not have “a lot of credibility.” The juvenile court
was in the best position to weigh the evidence and assess Mother’s credibility.
It is not our role on appeal to “reweigh the evidence, evaluate the credibility
of witnesses, or resolve evidentiary conflicts.” (In re Dakota H. (2005) 132
Cal.App.4th 212, 228.) We will uphold a juvenile court’s factual
determinations “even though substantial evidence to the contrary also exists
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and the trial court might have reached a different result had it believed other
evidence.” (Ibid.)
Mother relies on In re Ma.V. (2021) 64 Cal.App.5th 11 (Ma.V.) for the
proposition that the court erred in considering her failure to participate in
voluntary drug tests and services. That case is not helpful for Mother. That
case included allegations that the mother, who was a veteran with
posttraumatic stress disorder, was involved in instances of domestic violence
with a boyfriend and had a substance abuse problem with marijuana. (Id. at
p. 14.) After the mother’s children were detained, she informed the court that
she was already connected to services as a veteran. She reported that she
used marijuana medicinally with the approval of her Veteran’s
Administration (VA) providers. (Id. at pp. 17–18.) By the time the contested
adjudication and disposition hearing was completed, approximately 10
months after detention, the mother had ended her relationship with the
boyfriend and testified that she had been attending parenting, domestic
violence, and individual counseling services through the VA. There was
evidence that she was compliant with medication and treatment
recommendations, but the agency had difficulty obtaining detailed
information from the mother’s VA therapist. The agency was no longer
concerned that her marijuana use put the children at risk. (Id. at p. 19.) The
juvenile court removed the children from the mother’s care based on the
“ ‘historical issue of domestic violence’ and the court’s finding ‘there’s no
indication that [the] mother has dealt with this.’ ” (Id. at p. 21.)
The appellate court in Ma.V. determined the jurisdictional findings
lacked substantial evidence because they were based on old issues that were
resolved by the time of the hearing. (Ma.V., supra, 64 Cal.App.5th at pp. 21–
23.) The appellate court also determined the evidence was insufficient under
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a clear and convincing standard to support the removal order. The court
concluded that the mother’s services were voluntary and she had no
obligation to complete a verified case plan because one was not yet ordered.
(Id. at p. 24.) Nevertheless, the court observed that the mother had improved
her situation during the detention period so that the earlier issues had “aged
out.” Although the mother was not entirely cooperative with the agency, the
court observed that the “ability of a parent to get along with a social worker
is not evidence from which a removal order can be supported.” (Id. at p. 25.)
Rather, it was incumbent on the agency to obtain the necessary information
to confirm her participation in services. (Id. at p. 24.)
Here, unlike in Ma.V., there was no evidence to support a claim that
the detention issue had aged out. Because Mother resisted or declined
multiple opportunities provided by the Agency to provide a negative drug test
the court had only the uncontroverted positive drug tests to evaluate. Based
on this information the court stated, “the only inference that I can draw is
there was use.” Although Mother claimed she attempted to test when she got
a referral for testing in Mexico, she also said she did not want to test because
she thought it was an admission of a drug problem. The court could
reasonably disbelieve Mother’s explanations. Mother’s continued denial of
drug use in the face of positive drug tests and evidence that she was a known
substance user along with her unwillingness to test or participate in
voluntary treatment supported the court’s determination that there was no
alternative to removal, particularly for a child who was under a year old.
(§ 361, subd. (c)(1); In re Lana S. (2012) 207 Cal.App.4th 94, 105–106.)
Mother also contends that the court improperly shifted the burden to
Father to show his home was safe for placement. We again disagree. Before
making its findings, the court made some comments about the difficulty of
15
obtaining information when it had no control over the agencies in Mexico and
the fact that Father did not help the court by taking any proactive steps to
provide the court with information about the state of the home, such as
providing pictures. We construe these comments as what the court stated
them to be, an advisory digression, not a basis for the court’s order. As the
Agency points out, Father had only recently been confirmed as the biological
father. His status was not elevated to presumed and the Agency had no
burden to show why removal from him was necessary. (§§ 361.5, subd. (a);
361, subd. (c)(1)(B); In re Zacharia D. (1993) 6 Cal.4th 435, 448–449.)
Finally, Mother contends the court erroneously relied on the alleged
prior removal of other children and what it termed to be an “open case”
involving another child to support its removal finding. The court
acknowledged that it did not have full information about whether she had
voluntary cases in the past or lost other children “who were removed for
unknown reasons,” but commented that there was a “pattern” that “prior
children have suffered under the care – or been removed for reasons that can
only be described as adverse to their best interest, so they were removed.”
The record shows, and Mother admitted, that she had prior referrals to child
welfare service agencies and that at least two children were now living in
another state in the care of an older sibling. There were also referrals for a
child about a year older than A.T. that were closed by another county as
inconclusive. The court’s comments appear to be in the context of why it did
not find credible Mother’s claims that she would do everything the court
mandated her to do if A.T. were returned to her.
Even if the court relied on these prior referrals, any error was harmless
because the court’s focus was on the evidence of unmitigated drug use, which
we have concluded was alone sufficient to support the court’s removal
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finding. It is not reasonably probable that the court would have made a
different finding even without considering the prior referrals. (People v.
Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The order is affirmed.
O’ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.
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