In re Charlene S. CA2/7 ( 2015 )

Filed 10/14/15 In re Charlene S. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re CHARLENE S., a Person Coming B261833
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK81593)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
JEROME S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County, Teresa
Sullivan, Judge. Affirmed.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
_________________________
Jerome S. appeals from the juvenile court’s finding and order declaring his infant
daughter, Charlene S., a dependent child of the court under Welfare and Institutions Code
section 300, subdivision (b),1 and removing her from his custody after it had sustained an
allegation his history of substance abuse and current use of marijuana placed Charlene at
substantial risk of serious physical harm. He also appeals from the court’s orders
directing him to participate in family reunification services. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Infant’s Detention
Jerome is the presumed father of two daughters born to Crystal K. Jerome and
Crystal came to the attention of the Los Angeles County Department of Children and
Family Services (Department) in October 2013 when their older daughter, A.S. (born in
September 2013), was detained because of both parents’ substance abuse. The juvenile
court found A.S. had been placed at substantial risk of physical harm by Jerome’s history
of substance abuse, then-current abuse of alcohol and related criminal convictions and
Crystal’s admitted use of methamphetamine throughout her pregnancy. Jerome was
granted family reunification services, but Crystal was not.2 Jerome was ordered to
submit to drug testing and attend Alcoholics Anonymous (AA) meetings.
The section 300 petition involving A.S. was pending when Charlene was born in
September 2014. The Department received a referral reporting Crystal had given birth
after failing to appear for several prenatal care appointments and testing positive
repeatedly for methamphetamine and marijuana. Contacted by a social worker, Crystal
denied she was using drugs and claimed she had been sober during the last two months of
her pregnancy. Jerome also denied using drugs. Although the couple had been living
1
Statutory references are to this code.
2
Crystal, herself a former dependent of the juvenile court, was the mother of two
older children detained by the Department in 2010 due to her drug abuse. Crystal, who
was only 20 years old at the time, failed to reunify with those children; and her parental
rights were terminated in 2011. Crystal is not a party to this appeal.
2
together before Charlene’s birth, Jerome said Crystal planned to move out of their home
so he could parent Charlene.
Department records revealed Jerome, who was 50 years old, had a lengthy
criminal history beginning in the 1980’s that included drug-related arrests and
convictions. After multiple drug, vehicle and robbery offenses, he was sentenced in 2000
to a term of 15 years in state prison. He was paroled in 2013 and shortly thereafter
arrested for driving under the influence of alcohol. Although the charges were dismissed,
he was found to have violated the terms of his parole and was required to attend drug
treatment. At the dependency hearing for A.S. immediately preceding Charlene’s birth,
the Department had reported Jerome was only in partial compliance with his case plan:
He had tested positive for marijuana in August 2014 and had also submitted diluted
tests.3 The Department did not intend to recommend A.S. be returned to his custody at
the review hearing scheduled for October 2014.
The Department detained Charlene and placed her with Jerome’s aunt, who was
also the caregiver for A.S. On September 26, 2014 the Department filed a section 300
petition on behalf of Charlene, alleging Crystal’s and Jerome’s drug use placed the child
at substantial risk of harm. (§ 300, subd. (b).) With respect to Jerome, the petition
alleged he had a history of substance abuse, including alcohol, a criminal history of
convictions related to drug and alcohol abuse and was a current abuser of marijuana,
which rendered him incapable of providing regular care and supervision of the child.
Further, A.S. was currently a dependent of the court, also due to Jerome’s substance
abuse. At the detention hearing the court detained Charlene from her parents’ custody
and ordered monitored visitation for Crystal and unmonitored visitation for Jerome.
2. Jurisdiction/Disposition Proceedings
In the jurisdiction/disposition report prepared for an October 27, 2014 hearing, the
Department reviewed Jerome’s compliance with drug testing and treatment ordered in
A.S.’s case. According to the report, Jerome had tested positive for marijuana on April 9,
3
Both parents submitted to on-demand drug tests days after Charlene’s birth.
Crystal tested positive for marijuana; Jerome tested negative for all controlled substances.
3
18 and 22, as well as August 21, 2014. He had missed seven scheduled drug tests since
January 2014, and three tests were reported as diluted. He tested negative on 21
occasions, including four dates in September 2014 and two in October 2014. Jerome
admitted smoking marijuana in April 2014 and having a medical marijuana card but
claimed he had not otherwise used drugs in 17 years. He speculated the positive test in
August 2014 resulted only from contact with others who were smoking. He told a
Department investigator he knew Crystal had used drugs but claimed she did not use
them around him and he had not known she used them during her pregnancy. Crystal
denied Jerome was an alcoholic or drug abuser and said he smoked marijuana only
occasionally and never around her or children. She and Jerome no longer lived together
but they wanted to reunify with Charlene.
Jerome’s aunt, with whom both children were placed, admitted she was concerned
about Jerome’s drinking and the people he might be around. She had raised his two older
sons (now adults) and wanted to see him try to raise Charlene; she told the worker she
would intervene if she thought it necessary. Asked if Jerome was currently using
marijuana and somehow avoiding positive results on the tests, she declined to answer.
She also declined to say whether she thought he was using other drugs.
Jerome’s parole agent reported he had been cooperative with supervision and had
been testing negative for drugs. His parole had been extended in May 2014, however,
due to his DUI arrest and positive test for cocaine in July 2013.
Based on Crystal’s “pervasive” substance abuse, the Department recommended
she not receive reunification services. With respect to Jerome, the Department expressed
concern about his long history of drug and alcohol abuse, his sporadic testing and his
untruthfulness about past marijuana use. The Department recommended Jerome receive
family reunification services and continue to submit to regular drug testing.
At the combined review hearing for A.S. and jurisdiction hearing for Charlene, the
court found Jerome was not in compliance with the case plan for A.S., notwithstanding
4
his submission of certificates of completion of drug abuse and parenting programs at
Orion House,4 and ordered his family reunification services terminated.
The court continued the jurisdiction hearing for Charlene to December 1, 2014. A
supplemental report prepared for that hearing recounted a November 2014 episode in
which the Department investigator made an unannounced visit to Jerome’s apartment.
After ringing the doorbell, the investigator saw the door of the apartment open slightly
and then slowly shut again. The investigator called Jerome, who said he was not at
home. Asked whether anyone at the apartment might have opened the door, Jerome
suggested his dog had pushed the door. The investigator then drove to Crystal’s address,
but the apartment number given by Crystal did not exist. Jerome arrived at the complex.
When he saw the investigator, he moved back to his car as if he wanted to avoid speaking
with her. The investigator approached him and asked where Crystal lived. Jerome
answered he did not know and claimed he was there to visit a friend. He entered a unit
on the second floor, while the investigator called Crystal. Crystal, who said she was not
at the complex, became agitated and claimed she had only lived there a few days. The
investigator later saw a man who smelled strongly of marijuana leave the apartment
Jerome had entered. Called again, Jerome stated he would not meet with the investigator
because his friend did not want to become involved.5
The supplemental report also stated Jerome had visited Charlene only twice during
November and had infrequently called his aunt, a report verified by the aunt and a family
friend. Based on this information the Department wrote, “The child Charlene is very
young, only months old, and is in need of consistent, ongoing care. The Department
expresses major concern that father is in need of parent training in infant care before the
child can be safely maintained in his home. Further, father has stated to [the investigator]
that he will put the child in daycare while he is working, but does not present as having a
4
The Orion substance abuse program allowed participants to sign a waiver allowing
them to use marijuana. Jerome tested positive for marijuana once during the program.
5
Jerome tested negative for controlled substances five times during October and
November 2014.
5
clear plan for the child’s daily care and supervision. It is possible that father is not aware
of the amount of effort and time an infant needs for care.” The Department also
concluded it was “highly likely” Jerome and Crystal were involved in an ongoing
relationship and were evasive and hostile to questioning about their living situations. In
light of these facts, as well as the termination of reunification services to Jerome in A.S.’s
case, the Department recommended the court not provide services to assist the parents’
reunification with Charlene and to instead set a date for termination of parental rights and
selection and implementation of a permanent plan for Charlene.
At the December 1, 2014 hearing Crystal submitted a waiver of rights form.
Jerome proceeded to adjudication and testified he did not consider himself to be an addict
and had last used cocaine 17 years earlier. He insisted he had also not used marijuana for
the last six or seven months or consumed alcohol since his DUI arrest in August 2014.
He could not explain his 2013 positive test for cocaine. He reported he had attended a
30-day substance abuse program imposed because of his violation of the terms of his
parole. He also attended a 90-day program at Orion House following his DUI arrest. He
submitted to monthly testing with his parole officer and had attended AA meetings once
or twice a week since his arrest.6 He denied living with Crystal since March 2014 and
said he was visiting with Charlene at least once a week at the home of his aunt. If
Charlene were placed with him, he would use the referrals provided by the Department to
find child care for her while he worked. Jerome’s parole officer testified he had been a
model parolee since his DUI arrest but admitted he was not aware Jerome had a medical
marijuana card.
The contested hearing resumed December 3, 2014. Jerome’s counsel opposed a
finding of jurisdiction, arguing there had been no showing he was a current abuser of
marijuana or alcohol and that the Department’s concerns were speculative. Charlene’s
attorney joined with the Department in asking the court to sustain the section 300,
6
Notwithstanding his record of attendance, Jerome could not say how far he had
progressed with AA’s 12-step program and acknowledged he had not been working the
program.
6
subdivision (b), allegation against Jerome. The court agreed and sustained the count:
“The father’s record and background [are] clear. This is an individual who has a . . .
criminal lifestyle that dates back many, many years. Most of the convictions [involve]
drugs. And while [he] does appear, as his parole officer said, to be a model parolee at
this time, . . . the court is hopeful that he would focus his efforts on his sobriety and case
plan, as he has two children now in the system . . . . I did find that [Jerome’s] credibility
. . . was questionable, and that the inconsistency, dilutes and positive tests for cocaine in
the recent past . . . provide adequate evidence for the burden of proof at these
proceedings. The failure of father to visit with the child on an ongoing basis during this
time of review also did add to the court’s conclusion that this risk is current and
ongoing.”
Proceeding to disposition the court declared Charlene a dependent of the court,
ordered her removed from the parents’ custody and ordered Jerome receive family
reunification services. The court also stated it did not consider Orion House to be an
acceptable program because it permitted marijuana use. The court ordered Jerome to
attend a drug and alcohol program, submit to drug testing and attend developmentally
appropriate parenting classes and individual counseling. Crystal was denied formal
reunification services.
DISCUSSION
1. Governing Law and Standard of Review
The purpose of section 300 “is to provide maximum safety and protection for
children who are currently being physically, sexually, or emotionally abused, being
neglected, or being exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.” (§ 300.2; see In re
Giovanni F. (2010) 184 Cal. App. 4th 594, 599.) Section 300, subdivision (b)(1), allows a
child to be adjudged a dependent of the juvenile court when “[t]he 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 by the inability of the parent or guardian to provide regular care
7
for the child due to the parent’s or guardian’s mental illness, developmental disability, or
substance abuse.”
Although section 300 generally requires proof the child is subject to the defined risk
of harm at the time of the jurisdiction hearing (In re Savannah M. (2005) 131 Cal. App. 4th
1387, 1396; In re Rocco M. (1991) 1 Cal. App. 4th 814, 824), the court need not wait until a
child is seriously abused or injured to assume jurisdiction and take steps necessary to
protect the child. (In re N.M. (2011) 197 Cal. App. 4th 159, 165.) The court may consider
past events in deciding whether a child currently needs the court’s protection. (Ibid.) A
parent’s “‘[p]ast conduct may be probative of current conditions’ if there is reason to
believe that the conduct will continue.” (In re S.O. (2002) 103 Cal. App. 4th 453, 461;
accord, In re Christopher R. (2014) 225 Cal. App. 4th 1210, 1216.)
In addition, the Legislature has declared, “The 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. Successful participation in
a treatment program for substance abuse may be considered in evaluating the home
environment.” (§ 300.2.) Exercise of dependency court jurisdiction under section 300,
subdivision (b), is proper when a child is “of such tender years that the absence of
adequate supervision and care poses an inherent risk to [his or her] health and safety.”
(In re Rocco M., supra, 1 Cal.App.4th at p. 824; see also In re Christopher R., supra,
225 Cal.App.4th at p. 1220 [a finding of substance abuse by a parent of a child under
six years old is prima facie evidence of that parent’s inability to provide regular care
resulting in a substantial risk of harm].)
“‘In reviewing a challenge to the sufficiency of the evidence supporting the
jurisdictional findings and disposition, we determine if substantial evidence, contradicted
or uncontradicted, supports them. “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.” [Citation.]
“We do not reweigh the evidence or exercise independent judgment, but merely
8
determine if there are sufficient facts to support the findings of the trial court.”’”
(In re I.J. (2013) 56 Cal. 4th 766, 773.) We 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. (Ibid.; In re
Drake M. (2012) 211 Cal. App. 4th 754, 763; In re Alexis E. (2009) 171 Cal. App. 4th 438,
451.)
2. Substantial Evidence Supports the Juvenile Court’s Jurisdiction Finding
Cases finding a substantial physical danger to a child “tend to fall into two factual
patterns. One group involves an identified, specific hazard in the child’s environment—
typically an adult with a proven record of abusiveness. [Citations.] The second group
involves children of such tender years that the absence of adequate supervision and care
poses an inherent risk to their physical health and safety.” (In re Rocco M., supra,
1 Cal.App.4th at p. 824.)
This case plainly falls in the second group. At the time of adjudication Charlene
was three months old. Jerome had fathered at least three other children but had never
parented any of them. He had a lengthy history of drug and alcohol abuse, as well as a
serious criminal record that included drug-related offenses. While his negative tests
suggested he was on a path to recovery, the incidence of no shows, diluted tests and
occasional positive tests amply supports the juvenile court’s concern he had not fully
committed himself to sobriety.
Relying on cases distinguishing between drug abusers and incidental drug users,
Jerome argues there was insufficient evidence he was a substance abuser who is incapable
of providing regular care for Charlene. (See, e.g., In re Drake M., supra, 211 Cal.App.4th
at p. 764 [“jurisdiction based on ‘the inability of the parent or guardian to provide regular
care for the child due to the parent’s . . . substance abuse,’ must necessarily include a
finding that the parent at issue is a substance abuser”]; In re Destiny S. (2012)
210 Cal. App. 4th 999, 1001-1003 [no evidence mother’s use of marijuana and
methamphetamine caused her to neglect daughter, who was a “healthy, happy preteen,”
had no behavioral or discipline issues, attended school regularly and wanted “‘to go back
9
with [her] mom’”].) In Drake M. the court held “a finding of substance abuse for
purposes of section 300, subdivision (b), must be based on evidence sufficient to (1) show
that the parent or guardian at issue had been diagnosed as having a current substance
abuse problem by a medical professional or (2) establish that the parent or guardian at
issue has a current substance abuse problem as defined in [The American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental Disorders (4th rev. ed. 2000)
(DSM-IV-TR)].” (Drake M., at p. 766.)
The distinction made in these cases is instructive, but by no means dispositive. In
In re Christopher R., supra, 225 Cal.App.4th at page 1218, this court “recognize[d] the
Drake M. formulation as a generally useful and workable definition of substance abuse
for purposes of section 300, subdivision (b),” but held it was “not a comprehensive,
exclusive definition mandated by either the Legislature or the Supreme Court.” (Ibid.)
We also noted the definition of “‘substance abuse’” had been replaced with the more
broadly defined classification of “‘substance use disorders’” in the Diagnostic and
Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) published after Drake M.
(Christopher R., at p. 1218, fn. 6.) Jerome’s history of drug use and drug-related arrests
certainly falls within the scope of a substance use disorder. Based on its distrust of
Jerome’s credibility—a concern shared by the Department—the juvenile court’s finding
of jurisdiction was supported both by the evidence of Jerome’s continuing drug use and
by the court’s wholly appropriate concern that an infant requires dedicated care not
demonstrated by Jerome’s previous parenting experiences.
3. Substantial Evidence Also Supported the Disposition Order Removing
Charlene from Jerome’s Custody
Section 361, subdivision (c)(1), authorizes removal of a child from his or her
parent’s custody only if the juvenile court finds by 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 child if the child were returned home and “there
are no reasonable means by which the [child]’s physical health can be protected without
10
removing” the child from his or her parent’s custody.7 “The parent need not be dangerous
and the child need not have been actually harmed for removal to be appropriate. The
focus on the statute is averting harm to the child. [Citations.] In this regard, the court
may consider the parent’s past conduct as well as present circumstances.” (In re Cole C.
(2009) 174 Cal. App. 4th 900, 917; see In re Christopher R., supra, 225 Cal.App.4th at
pp. 1215-1216; In re A.S. (2011) 202 Cal. App. 4th 237, 247.)
The facts discussed support not only the juvenile court’s jurisdiction findings but
also its removal order. A “parent’s current understanding of and attitude toward the past
conduct that endangered a child” is relevant when the court evaluates risk. (In re J.N.
(2010) 181 Cal. App. 4th 1010, 1025-1026.) Jerome had recently failed to reunify with
A.S., and his sporadic visits with Charlene, for whom he had never provided primary
care, belied his statements affirming his commitment to parenting her. He had also failed
to make plans for her care during the hours he worked, and his speculation about the
ready availability of child care was, at a minimum, uninformed. His resistance to
Department oversight only made it more difficult for the court to risk issuing a home-of-
parent order. The evidence thus adequately supports the removal order.
7
“The burden of proof at the jurisdiction phase in the juvenile court is
preponderance of the evidence; the burden of proof at disposition is clear and convincing
evidence. (§ 355, subd. (a) [jurisdiction findings by preponderance of evidence]; § 361,
subd. (c) [disposition findings by clear and convincing evidence].) Nonetheless, we
review both jurisdiction findings and the disposition order for substantial evidence. (See
Sheila S. v. Superior Court (2000) 84 Cal. App. 4th 872, 880-881 [‘The “clear and
convincing” standard . . . is for the edification and guidance of the trial court and not a
standard for appellate review. [Citations.] “‘The sufficiency of evidence to establish a
given fact, where the law requires proof of the fact to be clear and convincing, is
primarily a question for the trial court to determine, and if there is substantial evidence to
support its conclusion, the determination is not open to review on appeal.’”’].” (In re
Christopher R., supra, 225 Cal.App.4th at p. 1216, fn. 4.)
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4. The Juvenile Court Did Not Abuse Its Discretion by Directing Jerome To
Participate in Drug Treatment and a Parenting Class
Jerome contends the juvenile court abused its discretion by requiring him to
participate in another substance abuse program and parenting class even though he had
completed comparable programs a year earlier.
The child’s best interest is the primary concern of the juvenile court, and it may
make “‘any and all reasonable orders to the parents or guardians’ to ameliorate the
conditions that made the child subject to the court’s jurisdiction.” (In re Neil D. (2007)
155 Cal. App. 4th 219, 224, quoting § 362, subd. (c); accord, In re Carmen M. (2006)
141 Cal. App. 4th 478, 486.) This provision and others in the Welfare and Institutions
Code “have been broadly interpreted to authorize a wide variety of remedial orders
intended to protect the safety and well-being of dependent children . . . .” (Carmen M., at
p. 486; accord, Neil D., at p. 224.) We review the juvenile court’s disposition order under
the abuse of discretion standard: “The juvenile court has broad discretion to determine
what would best serve and protect the child’s interests and to fashion a dispositional order
accordingly. On appeal, this determination cannot be reversed absent a clear abuse of
discretion.” (In re Baby Boy H. (1998) 63 Cal. App. 4th 470, 474; accord, Neil D., at
p. 225.)
The juvenile court did not abuse its discretion in requiring Jerome to attend an
additional substance abuse program and another parenting class. Although we are
cognizant of the strain these orders may have imposed on Jerome, there are sound reasons
for the order: The court found Jerome’s assertion of his recovery not to be credible, and
his aunt appeared to corroborate the Department’s suspicion he was somehow cheating
on the drug tests to yield negative results. Recovery from substance abuse is not a “one
and done” enterprise. The court reasonably concluded Jerome’s commitment was
shallow and his child would benefit from Jerome’s additional focus on his sobriety.
Similarly, Jerome had failed to demonstrate a parental orientation in his visits with his
daughter. By directing him to participate in another parenting program, the court was
12
providing Jerome an opportunity to demonstrate the sincerity of his commitment to
Charlene.
DISPOSITION
The orders of the juvenile court are affirmed.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.
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