In re A.N. CA5 ( 2013 )

Filed 9/16/13 In re A.N. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re A.N., a Person Coming Under the Juvenile
Court Law.
KERN COUNTY DEPARTMENT OF HUMAN F066388
SERVICES,
(Super. Ct. No. JD129149)
Plaintiff and Respondent,
v. OPINION
SAMANTHA N.,
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Jon E. Stuebbe,
Judge.
Conness A. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Theresa A. Goldner, County Counsel, and Mark L. Nations, Chief Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
*Before Kane, Acting P.J., Poochigian, J. and Franson, J.
INTRODUCTION
Samantha N. (mother) appeals from the juvenile court‘s dispositional findings on a
Welfare and Institutions Code section 3001 petition. Specifically, she alleges the juvenile
court‘s findings that she made minimal progress in addressing causes that led to her
daughter A.N.‘s out-of-home placement are inaccurate. Mother also contends there is
insufficient evidence to support the juvenile court‘s finding that A. faced a substantial
risk of harm if she were returned to mother‘s care. Lastly, mother argues the juvenile
court‘s determination has led to infringement of her fundamental right to parent and has
compromised her ability to bond with her daughter. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In early June 2012, the Kern County Department of Human Services (the
Department) received a referral that mother had given birth to A.; A.‘s meconium tested
positive for marijuana. Mother also tested positive for marijuana. She admitted using
marijuana during her pregnancy to treat depression. Mother also admitted to auditory and
visual hallucinations. Moreover, there were concerns regarding the condition of mother‘s
home.
While A. remained hospitalized in the neonatal intensive care unit as a result of
her premature birth, the Department conducted home visits. Mother‘s residence was
deemed to be unfit by the Department. She was advised to make a number of repairs, to
stop smoking inside the home, and to maintain the home‘s cleanliness. There were
additional concerns regarding mother‘s boyfriend and his mental health. These issues
continued to cause the Department concern until mother eventually moved out of the
home.
1All further statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
2.
On August 17, 2012, A. was ordered detained. A. had never resided with mother;
after A.‘s release from the hospital at about two months of age, she was placed in foster
care.
At the jurisdictional hearing, the juvenile court found the allegations of the
petition to be true and determined A. was a person described by subdivision (b) of section
300. It set the matter for disposition on October 24, 2012.
After a number of continuances, the disposition hearing was held December 20,
2012. At the conclusion of the proceeding, the juvenile court found a substantial danger
would be posed to A. were she to be placed in the care of mother. Mother was afforded
family reunification services. The juvenile court set the matter for a six-month review
hearing and advised mother regarding her appellate rights. This appeal followed.
DISCUSSION
On appeal, mother challenges the sufficiency of the evidence relating to the
juvenile court‘s dispositional findings.
I. Applicable Legal Standards
Section 300 provides, in relevant part:
―Any child who comes within any of the following descriptions is
within the jurisdiction of the juvenile court which may adjudge that person
to be a dependent child of the court: [¶] … [¶]
―(b) The child has suffered, or there is a substantial risk that the
child will suffer, serious physical harm or illness, as a result of the failure
or inability of his or her parent or guardian to adequately supervise or
protect the child, or the willful or negligent failure of the child‘s parent or
guardian to adequately supervise or protect the child from the conduct of
the custodian with whom the child has been left, or by the willful or
negligent failure of the parent or guardian to provide the child with
adequate food, clothing, shelter, or medical treatment, or by the inability of
the parent or guardian to provide regular care for the child due to the
parent‘s or guardian‘s mental illness, developmental disability, or substance
abuse.‖
In reviewing a challenge to the sufficiency of the evidence supporting the
jurisdictional findings and disposition, we determine if substantial evidence, whether or
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not that evidence is contradicted, supports those findings. ―In making this determination,
we draw all reasonable inferences from the evidence to support the findings and orders of
the dependency court; we review the record in the light most favorable to the court‘s
determinations; and we note that issues of fact and credibility are the province of the trial
court.‖ (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
―We do not reweigh the evidence or exercise independent judgment, but
merely determine if there are sufficient facts to support the findings of the
trial court. [Citations.] ‗―[T]he [appellate] court must review the whole
record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence … such that a reasonable trier of
fact could find [that the order is appropriate].‖‘ [Citation.]‖ (In re Matthew
S. (1988) 201 Cal.App.3d 315, 321; see also In re I.J. (2013) 56 Cal.4th
766, 773.)
―Evidence from a single witness, even a party, can be sufficient to support the trial
court‘s findings. (In re Casey D. (1999) 70 Cal.App.4th 38, 52–53; In re Rocco M.
(1991) 1 Cal.App.4th 814, 820; In re Cheryl E. (1984) 161 Cal.App.3d 587, 598.)‖ (In re
Alexis E. (2009) 171 Cal.App.4th 438, 451.)
II. The Finding That Mother Made Minimal Progress
Mother contends the juvenile court‘s finding that she made minimal progress
toward addressing the causes that led to A. being placed outside the home was inaccurate.
More particularly, she claims that (1) the petition did not assert specific dangers resulting
from mother‘s medical marijuana use, (2) she resolved the allegation pertaining to her
mental health and (3) by obtaining her own home she alleviated concerns regarding the
home she once shared with a live-in boyfriend. Mother also alleges she obtained
employment, participated in all visits with A., and completed several required classes,
thus, her progress was more than minimal.
At the disposition hearing, the juvenile court found, in relevant part:
―[THE COURT]: [Mother] knows about the child‘s medical
conditions. She has attended the doctors‘ visits and so forth. But the
underlying concerns that were expressed by [the agency‘s attorney] do
remain, and the—getting the [medical marijuana] card yesterday from what
appears to be some other different doctor, not Dr. Thacker, and not—and
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not leveling with [Dr. Thacker] as to what she‘s been doing is of great
concern. [¶] … [¶]
―The mother has made minimal progress toward alleviating or
mitigating the causes for the child‘s placement in out-of-home care. [¶] …
[¶]
―The mother‘s ordered to participate in counseling for parenting,
child neglect and substance abuse and to comply with the recommendations
of her doctor regarding her mental health.
―She is to submit to random, unannounced urine drug tests on at
least a monthly basis.‖
The Petition
Mother argues that allegation b-1 of the petition ―concerned Mother‘s medicinal
use of marijuana while she was pregnant,‖ and the subsequent positive result for that drug
shortly after A.‘s birth, but that ―no report was made or evidence presented … that
Mother‘s medicinal use of marijuana created‖ a risk to A. as affecting her ability to
parent. To the degree mother can be understood to challenge the sufficiency of the
petition, her claim lacks merit.
The petition filed contains the following allegation:
―b-1 On or about May 15, 2012, the mother … used Marijuana while
pregnant with the child, [A.]. The mother used Marijuana throughout her
pregnancy with the child. The child‘s meconium tested positive for
Marijuana on June 1, 2012 at the time of the child‘s birth. On June 12,
2012, the mother tested confirmed positive for Marijuana at a level
indicated to be 0.30uG/mL. On June 26, 2012, the mother ‗had a couple of
hits‘ of Marijuana. On June 27, 2012, the mother tested confirmed positive
for Marijuana indicated to be 0.10uG/mL. The mother suffers from
depression and uses Marijuana to self medicate.‖
Putting aside the fact the sufficiency of a petition cannot be challenged for the first
time on appeal (In re Christopher C. (2010) 182 Cal.App.4th 73, 82-83), the foregoing
allegation is sufficient.
In dependency proceedings, the petition must ―provide ‗meaningful notice‘ that
must ‗adequately communicate‘ social worker concerns to the parent.‖ (In re Jessica C.
(2001) 93 Cal.App.4th 1027, 1037, quoting In re Fred J. (1979) 89 Cal.App.3d 168, 177;
5.
see also In re Christopher C., supra, 182 Cal.App.4th at p. 83.) A parent should be given
notice of the specific factual allegations facing her with sufficient particularity, thus
permitting her to properly defend the charge. (In re Fred J., supra, at p. 175.) Relevant
here, a petition alleging that a child comes within subdivision (b) of section 300 must
allege that the child has suffered, or substantial risk exists that the child will suffer,
serious physical harm or illness as a result of the parent‘s substance abuse. It must
establish the severity of the physical harm and that the acts may continue into the future.
(See In re Rocco M., supra, 1 Cal.App.4th at p. 823.)
Here, the petition sets forth the Department‘s concern regarding mother‘s use of
marijuana during her pregnancy and continuing thereafter. It established harm with the
presence of tetrahydrocannabinol (THC) in A.‘s meconium, and mother confirmed
continued use of marijuana in the month following A.‘s birth. Plainly the Department
was concerned with mother‘s use of marijuana to ―self medicate.‖ Mother had
meaningful notice regarding the social worker‘s concerns. Those concerns were pled
with sufficient particularity to allow mother to meet the charge that the Department
believed her use of marijuana presented a substantial risk of serious physical harm. (In re
T.V. (2013) 217 Cal.App.4th 126, 131 [factual allegations need not reiterate social
worker‘s report; petition must plead essential facts].)
We note that mother‘s characterization of her use of marijuana as ―medicinal‖ is
disingenuous on this record. Initially mother claimed, as is noted in the petition, that she
used marijuana to treat depression. However, at that time of the jurisdictional hearing,
mother testified she did not have a medical marijuana card. It was not until the
dispositional hearing in December 2012 that mother testified differently. On that
occasion she claimed to use marijuana to treat chronic leg and back pain. And, on that
basis, mother obtained a medical marijuana card the day prior to the dispositional
hearing. Therefore, with regard to the allegation in the petition concerning mother‘s
marijuana use, that use was arguably not medicinal or legal in the sense it was sanctioned
by any medical professional.
6.
A. Medical Marijuana Use
Relying upon Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1346,
mother argues there was no evidence that her use of medicinal marijuana affected her
ability to parent her daughter. No one reported she was ―under the influence of
marijuana, smelled of marijuana, or that [her] use was negatively affecting her behavior.‖
She claimed that although A.‘s meconium reflected her use of marijuana, ―no evidence
was presented that this resulted in addiction or specific harm‖ to A. Mother claims her
continued marijuana use and the positive tests associated therewith were ―to be expected,
given [her] medicinal use of marijuana.‖
We find it important to note, again, that mother‘s characterization of her use of
marijuana as medicinal is suspect. Mother claimed initially to be using marijuana to treat
her depression, without the benefit of doctor oversight. Yet later, mother claimed she
used marijuana to treat chronic back and leg pain. She also testified at the hearing that
she told her mental health care provider of her marijuana usage. However, the doctor‘s
records reveal otherwise: Mother denied the use of marijuana. In any event, we find the
record is sufficient to support the juvenile court‘s dispositional finding on this basis.
Mother‘s reliance upon Jennifer A. v. Superior Court, supra, 117 Cal.App.4th
1322 does not assist her. In Jennifer A., the appellate court concluded the evidence was
insufficient to support the finding that returning the minors to the mother‘s custody
would create a substantial risk of detriment pursuant to section 366.22. (Jennifer A.,
supra, at p. 1346.) In that case, the minors had not been removed from the mother‘s
custody due to the mother‘s drug use. Instead, the minors were removed because the
mother left them alone on one occasion to go to work, believing that the father (whose
car had broken down, unbeknownst to her) would arrive shortly to care for them. (Id. at
pp. 1343-1344.) At the section 366.22 hearing, the evidence established that the mother
had complied with the reunification plan, had been employed for two years and recently
received a promotion, was cooperative with the agency, had always acted appropriately,
and had displayed appropriate parenting skills. There was no evidence of a history of
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mental illness, incarceration, or a substance abuse problem affecting her parenting skills.
The court found the mother‘s one positive drug test and several missed or diluted tests
between the 12-month review report/hearing and the 18-month review report/hearing did
not mean that ―the children‘s return to [her] would create a substantial risk of detriment
to the physical or emotional well-being of the children in light of the factors in this case
militating in favor of their return.‖ (Jennifer A. v. Superior Court, supra, at p. 1346.)
Significantly, the children were removed in Jennifer A. for a reason other than the
mother‘s drug use: She had left them alone on one occasion to go to work. Here, on the
other hand, A. was ordered detained because her meconium discharge revealed the
presence of THC, mother was self-medicating depression with marijuana, and mother‘s
home at the time of A.‘s birth was unacceptable. Further, unlike the mother in Jennifer
A., mother does not yet have a history of compliance with reunification services. The
mother in Jennifer A. had completed 18 months of court review, including completion of
drug testing and drug programs and had 84 drug-free tests. (Jennifer A. v. Superior
Court, supra, 117 Cal.App.4th at p. 1343.) Here, in contrast, at the time of the
disposition hearing, mother had made changes to the environment within which A. would
reside, but only within the two months prior to the hearing. Also, mother continued to
test positive for marijuana despite advising her mental health provider that she was no
longer using the substance, and mother had only recently begun using the substance with
a physician-issued medical marijuana card. In fact, her use of marijuana had only been
legal for one day prior to the dispositional hearing. Moreover, she had yet to enroll in
substance abuse counseling.
More specifically, the record reveals that mother was subject to seven drug tests.
On each occasion she tested positive for illegal marijuana use. The positive results are
dated June 19, July 6, August 16, September 28, October 1 and 17, and November 15,
2012. Mother saw her mental health provider on August 30, September 13 and
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October 11, 2012. Yet, on each occasion she denied the use of marijuana.2 We think
mother‘s dishonesty speaks directly to her parenting judgment.
Additionally, mother‘s testimony at the dispositional hearing reveals that her use
of marijuana presents a substantial risk that affects her ability to parent A. Mother
testified that she only smokes marijuana at night in order to help her sleep. She testified
she would have ―a couple hours‖ to sleep off its effects before she would have to get up
and care for A.. She did not believe it would negatively affect her ability to care for A.
during those few hours because she claimed to be a light sleeper. The court was free to
find mother‘s testimony not credible. (In re Heather A., supra, 52 Cal.App.4th at p. 193.)
From this evidence, it was reasonable for the juvenile court to infer mother‘s
marijuana use would affect her ability to parent.
B. Mental Health
Mother contends that she resolved allegation b-2 of the petition because she
obtained mental health treatment, was regularly attending counseling, and was compliant
with the medication prescribed by her doctor. As a result, she claims her progress was
not minimal and that she had ―completely mitigated the cause‖ for A.‘s out-of-home
placement on this basis.
The petition alleged that mother ―suffers from an undiagnosed mental illness. The
mother has auditory and visual hallucinations including hearing whispers and seeing
ghosts. The mother suffers from depression and uses Marijuana to self medicate.‖
Here, the juvenile court‘s primary concern at disposition was mother‘s continued
use of marijuana. The court did not expressly find that mother‘s progress in the area of
her mental health was minimal; it was said in an overall context. To the degree the
2On several occasions, prior to obtaining a medical marijuana card, mother claimed she
intended to quit using marijuana. On July 23, 2012, mother told the social worker that she did
not ―plan on using, and will do anything to get her daughter home.‖ Two days later, during a
family decision meeting, mother and then boyfriend ―Matthew agree[d] to stop using marijuana.‖
On October 24, 2012, mother told the social worker that she was no longer using marijuana.
Instead, months later, mother was still using marijuana illegally.
9.
evidence established that mother was not truthful with her mental health care provider
concerning her illegal use of marijuana and that she continued to use marijuana against
her physician‘s advice, such a finding is supported by the record. On at least three
occasions, when treated by her mental health provider, Swati Thacker, M.D., mother
denied the use of marijuana. Mother also claimed to understand the doctor‘s concerns
about mixing psychotropic drugs, such as the Lexapro she was prescribed, with
substances such as marijuana. Dr. Thacker‘s records contradict mother‘s testimony at the
hearing that she had advised her doctor about her use of marijuana. From this evidence it
was reasonable for the juvenile court to conclude mother‘s progress in addressing her
mental health issues had been minimal.
C. Employment, Visitation and Completion Issues
Mother challenges the court‘s findings with regard to the allegation set forth as b-3
of the petition:
―On June 12, 2012, the mother[‘s] home had a foul smell of urine, cigarette
smoke, and rotting food. The kitchen had several flies, the dishes were
overflowing, and the home had several full ashtrays of cigarette butts.
There were large piles of clothing found in the bathroom and a foul odor
was present. The mother‘s bedroom has a hole in the bottom of the wall. A
bedroom in the home contained mold damage due to a roof leak. The
living room ceiling above the wood burning fireplace has a large hole, with
shards of ceiling sticking down. On August 10, 2012, the carpeted floor in
the living room had a pile of dog feces, dog urine stains and the smell of
dog urine. There are [a] total of five indoor dogs. There is a non covered
air vent. On a desk there were cigarette butts in an ashtray. There were
cigarette butts in an ashtray on top of a window fan. One of the bathroom
sinks is not operable. In a shower stall the paint is peeling. Around the
bathtub outer edge there is a cigarette butt. In the shower drain there are
cigarette butts.‖
Mother contends that at the time of the disposition hearing, she was living on her
own in an approved residence. She was no longer living with her boyfriend Matt, with
whom she had been residing at the time the petition was filed. Because her new home
presented no environmental concerns, and because she was no longer living with her
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boyfriend, she claims her progress was not minimal and she had completely mitigated the
cause for A.‘s out-of-home placement on this basis.
But as noted above, the juvenile court‘s primary concern at disposition was
mother‘s continued use of marijuana. The court did not expressly find that mother‘s
progress in the area of her home environment was minimal; it was said in an overall
context. The juvenile court heard mother‘s testimony that she had been living on her own
since approximately November 1 of that year. It heard testimony that mother‘s new
home had been visited on three occasions and that no one had voiced any concerns with
regard to the home environment. Mother‘s testimony in this regard was not contradicted.
Nevertheless, there is other evidence concerning the home environment from which the
court could have assigned a ―minimal progress‖ label.
Regardless of mother‘s new home environment, the evidence obtained at the
disposition hearing also revealed that mother continued to smoke cigarettes. When asked
whether anyone had indicated to her that exposure to cigarette smoke or smell could be
detrimental to her daughter, mother indicated ―[e]verybody‖ had told her so. She claimed
she would quit smoking once she was given custody of her daughter.3
A. was born prematurely. As a result, she was a high-risk infant and would
continue to be so for the first year of her life. Her lungs were underdeveloped and
environmental concerns were high, particularly those associated with cigarette smoking
and secondhand smoke. Mother herself testified at the disposition hearing that A.‘s
breathing ―has sounded raspy from day one.‖ Testimony taken during the jurisdictional
proceedings addressed the importance of the concern that A. be protected from the
environmental risk presented by cigarette smoke. Smoking cessation was recommended
to mother early on.4
3Motherpreviously claimed, in June, that she was ―‗getting ready to quit pretty soon,
next couple weeks.‘‖
4The foster home within which A. had been placed did not include anyone who smoked
cigarettes.
11.
Based upon the record, it was reasonable for the juvenile court to conclude that
mother‘s progress in addressing the potential environmental dangers to A. had been
minimal. There continued to be a risk to A. of the negative effects of secondhand
cigarette smoke. (See In re Alexis E., supra, 171 Cal.App.4th at p. 452.)
Mother argues that in addition to addressing the causes that led to A.‘s out-of-
home placement, she made ―other progress that went beyond ‗minimal,‘‖ including
obtaining employment, maintaining appropriate visits with A. and attending related
medical appointments, and completing courses in parenting and neglect, shaken baby
syndrome, CPR and car seats. There is no evidence to suggest the juvenile court did not
consider these factors. As previously noted, it is plain from the record that the court was
primarily concerned with mother‘s continued use of marijuana and the fact that she
dishonestly represented to her mental health care provider that she was no longer using
that substance.
It is also worth noting that mother had maintained employment for less than two
months at the time of the disposition hearing. More significantly however, mother had
not yet completed, nor even enrolled in, substance abuse counseling.5 Thus, to the degree
mother infers she was compliant with the recommended counseling, she is wrong.
In sum, on this record, and viewing the evidence in the light most favorable to the
juvenile court, we find there is sufficient evidence to support the juvenile court‘s findings
5In response to an inquiry as to whether she had ―signed up for or began attending‖ such
counseling, mother replied, ―Not at the moment, no.‖ When asked this same question at the
earlier jurisdictional hearing, mother testified as follows:
―[MOTHER‘S ATTORNEY]: Okay. Are you attending any drug diversion or substance
abuse classes at this time?
―[MOTHER]: Not at the moment. I went in to sign up and he was busy. And I haven‘t
had a chance to talk to him.‖
In light of its concern about mother‘s continued marijuana use, it would not have escaped
the juvenile court‘s notice that nearly three months had passed between the jurisdictional and
dispositional hearings and yet mother had not yet begun substance abuse counseling.
12.
that mother‘s progress in mitigating the causes that led to A.‘s out-of-home placement
was minimal. (In re Heather A., supra, 52 Cal.App.4th at p. 193.)
III. The Finding That A. Faced a Substantial Risk if Returned to Mother’s Care
Mother contends that ―substantial evidence‖ does not support the juvenile court‘s
finding that A. faced a substantial risk if she were returned to mother‘s care. She claims
that because she addressed her mental health issues, and had found a suitable place to
live, coupled with the fact no evidence was presented to establish that her medicinal use
of marijuana would impair her parenting ability, the court‘s finding was based upon
speculation alone. We do not agree.
Mother‘s citation to In re David M. (2005) 134 Cal.App.4th 822 is misplaced. In
David M., the appellate court reversed the juvenile court‘s jurisdictional order because
there was no evidence tying the mother‘s marijuana use to actual harm or a substantial
risk of serious harm to the minors. The mother in David M. tested positive for marijuana
while pregnant with one child and did not receive prenatal care. However, both of her
children tested negative for marijuana at birth. The mother claimed her positive drug test
for marijuana metabolites was due to being in the presence of others who were using
marijuana. Moreover, the mother tested negative for drugs approximately 18 times
during the four-month period between the detention and jurisdiction hearings, and all of
the evidence of her prior substance abuse was derived from four-year-old reports. (In re
David M., supra, at pp. 830-831.) The court observed, ―The evidence was uncontradicted
that David was healthy, well cared for, and loved, and that mother and father were raising
him in a clean, tidy home.‖ (Id. at p. 830.)
In re David M. is factually distinguishable. First, mother‘s marijuana use here was
recent and documented. There was no reliance on four-year-old reports to document the
alleged drug use; she admitted using it during her pregnancy and continued to use the
substance illegally until the day prior to the dispositional hearing when she obtained a
medical marijuana card. Unlike the children in David M., A.‘s meconium at birth tested
positive for THC. Second, the mother in David M. submitted to numerous drug tests, all
13.
of which were negative. Here, mother tested positive for the illegal substance on every
occasion, while she denied use of the substance to her mental health care provider and
social workers. Third, the mother in David M. was caring for her older child and there
was no evidence that she was unable to care or protect him. Here, A. was mother‘s first
child, born prematurely and considered to be at risk for the first year of her life. A. had
never resided with mother, and mother‘s visits were limited to two hours per week. Thus,
this case is significantly different from David M. and does not suggest a similar result.
Mother also relies upon In re Drake M. (2012) 211 Cal.App.4th 754 to support her
position. There, the agency alleged a child was at risk of serious physical harm because
the child‘s father ―(1) continued to test positive for marijuana on drug screens throughout
the dependency proceedings; (2) admitted to smoking marijuana up to four or five times
per week; and (3) [transported the child] from daycare and cared for him alone four hours
after smoking marijuana.‖ (Id. at p. 764.) Drake M. concluded the evidence failed to
show the father was a substance abuser or that he had failed or was unable to supervise or
protect the child. On the latter point, Drake M. noted ―father possessed a valid
recommendation from a physician to use marijuana for treatment of his chronic knee
pain. His continuing usage and testing positive for cannabinoids on drug screens, without
more, is insufficient to show [the child] was at substantial risk of serious physical harm or
illness.‖ (In re Drake M., at p. 768.) The court concluded the agency had failed to show
a link between father‘s usage of medical marijuana and risk of serious physical harm or
illness to the child. (Id. at pp. 768-769.)
Here, as noted previously, mother did not have a valid recommendation from a
physician to use marijuana until the day prior to the dispositional hearing. Thus, her
usage throughout these proceedings was illegal and contrary to the advice of her mental
health care provider. Moreover, unlike the father in Drake M. who consistently asserted
and could establish his use of marijuana-treated chronic knee pain, mother‘s reason for its
use was inconsistent. Mother initially asserted she used marijuana during her pregnancy
with A. to increase her appetite and to treat depression, and she continued to use
14.
marijuana after A.‘s birth to treat depression. However, at the disposition hearing,
mother testified she used marijuana to treat chronic leg and back pain because it helped
her sleep. Moreover, unlike Drake M., there is ―more‖ in this case—mother was
dishonest with her mental health care provider. Mother was reporting to Dr. Thacker that
she was not using marijuana—an inaccuracy established by both mother‘s own testimony
and by the toxicology results. Mother‘s use of marijuana was illegal and in disregard of
Dr. Thacker‘s advice to avoid such substances.
In In re Alexis E., the court found as follows:
―… While it is true that the mere use of marijuana by a parent will
not support a finding of risk to minors [citations], the risk to the minors
here is not speculative. There is a risk to the children of the negative
effects of secondhand smoke.
―Health and Safety Code section 11362.79 states that nothing in the
statutory provisions for the state‘s voluntary medical marijuana program
(Health & Saf. Code, § 11362.5 et seq.) authorizes a person lawfully using
medical marijuana to use it ‗within 1,000 feet of the grounds of a school,
recreational center, or youth center, unless the medical use occurs within a
residence,‘ or to use it on a school bus, or in a motor vehicle that is being
operated. A reasonable inference to be drawn from this prohibition is that
use of marijuana near others can have a negative effect on them.
―Section 300.2 provides that the purpose of the provisions in the
Welfare and Institutions Code relating to dependent children is to provide
protection for children being harmed or who are at risk of being harmed.
Section 300.2 further states 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.‘ (Italics added.) We cannot fathom that the Legislature intended that
negative effects on children from marijuana smoke would be unacceptable
if it were being smoked outside the medical marijuana law, but acceptable
if the person smoking the substance in their home were doing it legally. Or
perhaps stated another way, even legal use of marijuana can be abuse if it
presents a risk of harm to minors.‖ (In re Alexis E., supra, 171 Cal.App.4th
at p. 452.)
The negative health effects of secondhand smoke are well known. (See Health &
Saf. Code, § 104350, subd. (a)(5) [legislative finding that involuntary smoking is a cause
of disease, including lung cancer, in healthy nonsmokers]; Boeken v. Philip Morris, Inc.
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(2005) 127 Cal.App.4th 1640, 1693 [citing 1993 Environmental Protection Agency report
conclusion that secondhand smoke kills 3,000 nonsmoking Americans each year].) On
this record, there is evidence that mother‘s use of marijuana affects her ability to parent.
This is not a situation wherein a parent‘s use of either cigarettes or marijuana and
the effect of secondhand smoke present the only risk to an otherwise healthy child.
Rather, here, A. is a high-risk infant, born significantly premature. While the record
establishes she was progressing and healthy, it also establishes that in light of her
premature birth—and underdeveloped lungs—she remains high risk for the first year of
her life. At the time of the disposition hearing, A. was a high-risk infant at the age of five
months. Mother continued to smoke cigarettes and continued to use marijuana. It was
reasonable for the juvenile court to conclude that A. faced a substantial risk of harm if
returned to mother‘s care.
IV. The Finding Regarding A.’s Removal
Mother contends there is insufficient evidence to support the juvenile court‘s order
for continued removal of A. from her custody.
At the time of the proceedings, section 361, subdivision (c)(1) provided:
―A dependent child may not be taken from the physical custody of
his or her parents or guardian or guardians with whom the child resides at
the time the petition was initiated, unless the juvenile court finds clear and
convincing evidence of any of the following circumstances …:
―… There 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. The fact that a minor
has been adjudicated a dependent child of the court pursuant to subdivision
(e) of Section 300 shall constitute prima facie evidence that the minor
cannot be safely left in the physical custody of the parent or guardian with
whom the minor resided at the time of injury. The court shall consider, as a
reasonable means to protect the minor, the option of removing an offending
parent or guardian from the home. The court shall also consider, as a
reasonable means to protect the minor, allowing a nonoffending parent or
guardian to retain physical custody as long as that parent or guardian
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presents a plan acceptable to the court demonstrating that he or she will be
able to protect the child from future harm.‖
―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.‖ (In
re Cole C. (2009) 174 Cal.App.4th 900, 917.) Although the juvenile court‘s findings
must be based on clear and convincing evidence, we review an order removing a child
from parental custody for substantial evidence. (In re J.K. (2009) 174 Cal.App.4th 1426,
1433.)
―The juvenile court has broad discretion to determine what would best
serve and protect the child‘s interest and to fashion a dispositional order.
(In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) On a challenge to
an order removing a dependent child from his or her parent, we ‗view the
record in the light most favorable to the order and decide if the evidence is
reasonable, credible and of solid value.‘ (Kimberly R. v. Superior Court
[(2002)] 96 Cal.App.4th [1067,] 1078.) We draw all reasonable inferences
from the evidence to support the findings and orders of the dependency
court. (In re Heather A. [(1996)] 52 Cal.App.4th [183,] 193.)‖ (In re
Javier G. (2006) 137 Cal.App.4th 453, 462-463.)
Here, the juvenile court found as follows:
―There is clear and convincing evidence there‘s a substantial danger
to the physical health, safety, protection or physical or emotional well-
being of the child or there would be if the physical custody of the child is
not removed from the parent and there are no reasonable means to protect
the child‘s physical health without removal of the child from the physical
custody of the mother.
―The social worker solicited and integrated into the case plan the
input of the child‘s family and other interested parties.
―The Department … has complied with the case plan by making
reasonable efforts and providing reasonable services to prevent or eliminate
the need for removal of the child from the home and to make it possible for
the child to safely return home and to complete whatever steps are
necessary to finalize the permanent placement of the child.
―This child was ordered removed from the physical custody of the
mother based on the facts set forth in the sustained petition, the report of
the social worker and the evidence presented.
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―The status of the child is reviewed under Section 366(a) ….
―The child‘s out-of-home placement is appropriate and necessary.‖
Mother contends removal was improper because she had addressed her mental
health issues and found a suitable place to live. She contends no evidence was presented
to show her use of marijuana affected her ability to parent. She points to the fact A. ―was
no longer a fragile preemie,‖ had traveled out of state, and had made significant health
gains. Mother asserts ―[a]ll that existed at the time of the disposition hearing, six months
after [A.]‘s birth, was speculation that Mother‘s medicinal use of marijuana might put
[A.] at risk of serious physical harm.‖ Finally, mother claims the juvenile court failed to
consider less drastic measures than continued removal.
As discussed above, mother‘s mental health issues had not been completely
addressed. Additionally, she was dishonest with her mental health care provider and
others about her illegal use of marijuana. We believe that speaks to her ability to parent.
Also, as noted above, while mother had found a more suitable home, she had only resided
in the home for less than two months. In light of the evidence in this record, it was not
unreasonable for the juvenile court to have reservations about mother‘s ability to
maintain a suitable environment for A. in the long term. Mother‘s previous efforts to
maintain a suitable environment were inconsistent.
Further, while the record establishes that A.‘s overall health continued to improve,
and she did in fact travel with her foster family out of state, the record also established
that due to A.‘s premature birth at 29 weeks, she is considered to be a high-risk infant for
the first year of her life. A.‘s lungs were underdeveloped at birth; smoking and
secondhand smoke presented a significant risk. A. was less than five months old at the
time of the disposition hearing. Thus, she was still considered to be a high-risk infant.
Moreover, the fact A. was approved to travel with her foster family out of state does not
mean her high-risk infant status was negated by that travel. It is important to note that no
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one in the foster home smoked, therefore, A. was not subject to the same risks with her
foster family as those presented by her mother‘s care.6
We have already addressed mother‘s claim that her use of medicinal marijuana
does not put A. at a substantial risk of harm. As thoroughly discussed above, we find to
the contrary and need not repeat the analysis here.
For all of the reasons given above, we cannot agree with mother that the juvenile
court failed to consider less drastic measures. There was sufficient evidence before the
juvenile court to indicate that even strict supervision by the Department would not protect
A. from the possibility of harm.
To conclude, the juvenile court‘s order was based upon substantial evidence. It
was focused, as it should have been, on averting any potential harm to A. (In re Cole C.,
supra, 174 Cal.App.4th at p. 917; In re J.K., supra, 174 Cal.App.4th at p. 1433.)
V. The Fundamental Right to Parent and the Ability to Bond
Lastly, mother argues that because the juvenile court found she made minimal
progress at the dispositional hearing, and because that finding is not supported by the
evidence, she has been denied the fundamental right and opportunity to parent and bond
with her daughter. She provides a citation to In re K.P. (2012) 203 Cal.App.4th 614 as ―a
cautionary tale about the potential implications for Mother and [A.] as a result of the
juvenile court‘s minimal progress finding.‖ This argument is simply a rehash of her
earlier arguments.
As explained in detail above, we have already determined the juvenile court‘s
challenged findings are supported by sufficient or substantial evidence. However, mother
is correct that the facts of In re K.P. provide a cautionary tale. Given the fact mother‘s
parental rights have not been terminated, and she has the opportunity to correct the
6When mother complained about or objected to A. travelling out of state with the foster
family, she did so on the basis that her child was ―‗high risk.‘‖ Here, she uses the fact that the
trip occurred to assert A. is a normal, healthy infant. These contrary positions cannot be
reconciled. In any event, the record establishes that medical professionals consider premature
infants such as A. to be high risk for the first year of life.
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deficiencies identified at the dispositional hearing, and to effect change during
reunification, we hope she will do so.
DISPOSITION
The dispositional orders entered on December 20, 2012, are affirmed.
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