In re Allison F. CA2/4 ( 2014 )

Filed 1/27/14 In re Allison F. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re ALLISON F., a Person Coming Under B249261
the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. CK93184)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
PAULA F.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County,
Terry T. Truong, Referee. Affirmed.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant
and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and
Kim Nemoy, Principal Deputy County Counsel for Petitioner and Respondent.
Paula F. challenges jurisdictional and dispositional orders made by the juvenile
court in this dependency proceeding in which her infant daughter, Allison F., was
declared a dependent of the court. We find substantial evidence of risk to the child to
support jurisdiction and no abuse of discretion in the disposition order.
FACTUAL AND PROCEDURAL SUMMARY
Mother Paula F. has two children, Richard C. (born in December 2007) and his
half-sister, Allison F., (born in January 2013). Mother was 14 years old when she
became pregnant with Richard. In June 2012, the dependency court sustained a petition
brought by the Department of Children and Family Services (department) finding
Richard to be a dependent child because of a history of domestic violence between
mother and the child’s father, a six-year history of drug abuse by mother, and the father’s
history of substance abuse. Richard was removed from mother’s care. Mother entered a
six-month inpatient substance abuse program in May 2012, but did not comply with the
program and did not complete it. She claimed to have visited Richard each Tuesday
while at that program, but did not do so. She also did not successfully complete an
outpatient program, and she failed to appear for seven out of twelve random drug tests
from June to December 2012.
A children’s social worker conducted an assessment and concluded that the risk of
future maltreatment of Allison was high based on mother’s history of drug use, the age of
the child, and the case involving Richard. But since mother had been admitted to the
Flossie Lewis residential program in January 7, 2013, shortly before Allison was born,
the department recommended that Allison remain in mother’s care contingent on mother
remaining in her current residential treatment program. The department determined that
court intervention was needed to ensure case plan compliance. Mother was uncertain
which of two men had fathered Allison.
A petition was filed by the department under Welfare and Institutions Code
section 300,1 subdivision (b), alleging that Allison is a dependent child because mother’s
1 Statutory references are to the Welfare and Institutions Code.
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unresolved history of drug use rendered her unable to supervise or protect the child, and
because the half-sibling Richard was currently a dependent of the court due to mother’s
drug abuse. The juvenile court released Allison to mother’s custody on the condition that
mother remain in her program and test clean.
The jurisdiction/disposition report for the March 11, 2013 hearing summarized a
new interview with mother in February 2013. She admitted the allegations were true
because she was using marijuana and methamphetamines. Mother also admitted that she
did not complete the residential substance abuse program she was in before giving birth
to Allison, and that she refused an offer to sign a new three-month contract with that
program. She had planned to participate in an outpatient program, but attended only once
before Allison’s birth. Mother stated that she was very happy in her present residential
program, which was more professional and organized than the previous program. She
said the last time she had used methamphetamines was in April 2012.
A counselor at mother’s current residential program told the children’s services
worker that mother was attending and participating in twice daily group sessions on
weekdays and weekly counseling session. Although mother initially had a difficult time
adjusting to the schedule, she had improved significantly and was doing well. Mother
was drug testing with negative results. Mother had been selected for random drug testing
three times after the petition as to Allison was filed. She did not test twice, and tested
negative once.
The department recommended that Allison be declared a dependent under section
300 subdivision (b) and ordered to reside at mother’s home, on the condition that mother
remain in her drug rehabilitation program and continue to test clean. Family maintenance
services were recommended for mother and Allison. The department also recommended
that mother be ordered to participate in a program of parent education, substance abuse,
and individual counseling, and that she submit to random drug testing.
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In February 2013, a counselor at mother’s inpatient substance abuse program
wrote a letter stating that mother was in the primary phase of treatment. She was
participating in numerous weekly groups and classes, such as relapse prevention,
feelings, boundaries, life skills, smoking cessation, 12 & 12 recovery, anger management,
parenting, healing and trauma, big book study, addition education, morning meditation,
art/music therapy, adult children of alcoholics and domestic violence. Mother was
attending daily 12-step meetings and was scheduled to work toward maintaining a
sponsor in the coming weeks. Mother met with the counselor weekly. She was showing
dedication and willingness to reach long term sobriety for newborn Allison. The
counselor wrote that mother showed tremendous progress in the preceding three weeks.
The jurisdiction/disposition hearing was held in March 2013. No testimony was
taken. The court considered the detention report, the jurisdiction/disposition report, and
the progress letter from mother’s counselor. Counsel for mother requested dismissal of
the petition, arguing that mother had remained sober since April 2012 with clean tests
since then, had made progress in her program, and was in current compliance. Counsel
for Allison asked the court to sustain the petition because of mother’s admitted substance
abuse issues and failure to complete her earlier program. The attorney argued that, while
mother tested negative when she submitted to tests, she was a no-show for testing on
November 2 and December 17, 2012 and on January 11 and 30, 2013. Counsel for minor
submitted on the issue of Allison’s placement in mother’s care because mother was
currently in a program. Counsel for the department joined in this argument.
The court found by a preponderance of the evidence that count (b)(1) of the
petition was true as amended to delete the sentence that had stated mother had failed to
regularly participate. As amended, the sustained count read: “The child, Allison [F.’s]
mother, Paula [F.], has an unresolved history of illicit drug use, including use of
methamphetamine and marijuana. On 4/16/12 the mother was under the influence of
illicit drugs while the child’s sibling, Richard [C.], was in the mother’s care and
supervision. The child’s sibling is a dependent of the Juvenile Court due to the mother’s
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illicit drug use. The mother’s unresolved history of illicit drug use places the child at risk
of harm.”
The court declared Allison a dependent within section 300, subdivision (b). She
was ordered to remain placed with mother on condition that mother was in a drug
program. The department was ordered to provide family maintenance services to mother,
including a drug rehabilitation program with aftercare, random or on-demand weekly
testing, and individual counseling, which could be a component of the drug program.
Mother was warned that Allison could be immediately detained if mother left the drug
program. The court admonished mother that a missed test was considered to be a dirty
test. Mother filed a timely appeal from the jurisdiction order.
DISCUSSION
I
Mother argues the court erred in finding Allison came within dependency
jurisdiction because there was no evidence of current or future risk of harm to her.
Mother contends that while she was concerned about her ability to appropriately care for
Richard, there was no evidence of actual physical harm or abuse as to him. She cites
maternal grandmother’s statement that she believed it likely mother had reported herself
to the department in a desire to get help. Mother acknowledges her failure to make
progress while receiving services in Richard’s case, which was filed in April 2012, less
than a year before the petition was filed as to Allison in January 2013. She was pregnant
with Allison during most of that period. Mother explained that she was only 15 when she
gave birth to Richard, had experienced family turmoil, had been kicked out of her
mother’s home when she was 13, had not completed high school and had several
relationships with men at an early age.
Mother contends that she has demonstrated a new commitment to sobriety and
dedication to Allison by entering a residential treatment program. She also argues that
Allison is a healthy, drug-free baby and that there is no evidence that she has not been
well cared for.
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“At the jurisdictional hearing, the dependency court’s finding that a child is a
person described in section 300 must be supported by a preponderance of the evidence.
[Citations.] We review the dependency court’s jurisdictional findings for substantial
evidence, and review the evidence in the light most favorable to the dependency court’s
findings and draw all reasonable inferences in support of those findings. [Citation.]
‘Section 300, subdivision (b) provides a basis for . . . jurisdiction if the child has suffered,
or there is a substantial risk the child will suffer, serious physical harm or illness caused
by the parent’s inability to provide regular care for the child because of the parent’s
mental illness, developmental disability or substance abuse.’ [Citation.]” (In re John M.
(2013) 217 Cal. App. 4th 410, 418.)
“A jurisdictional finding under section 300, subdivision (b) requires ‘(1) neglectful
conduct by the parent in one of the specified forms; (2) causation; and (3) “serious
physical harm or illness” to the minor, or a “substantial risk” of such harm or illness.’
[Citation.] ‘Subdivision (b) means what it says. Before courts and agencies can exert
jurisdiction under section 300, subdivision (b), there must be evidence indicating that the
child is exposed to a substantial risk of serious physical harm or illness.’ [Citations.]”
(In re John M., supra, 217 Cal.App.4th at p. 418.)
Mother argues we may not presume a substantial risk of current or future harm
sufficient to warrant jurisdiction under section 300, subdivision (b) based on evidence of
her substance abuse problem alone. She cites In re James R. (2009) 176 Cal. App. 4th 129
which held: “Although evidence of past conduct may be probative of current conditions,
the court must determine ‘whether circumstances at the time of the hearing subject the
minor to the defined risk of harm.’ (In re Rocco M. [1991] 1 Cal.App.4th [814,] 824; see
In re Janet T. (2001) 93 Cal. App. 4th 377, 388.) Evidence of past conduct, without more,
is insufficient to support a jurisdictional finding under section 300. There must be some
reason beyond mere speculation to believe the alleged conduct will recur. [Citation.]”
(Id. at pp. 135–136.)
In addition, mother relies on In re David M. (2005) 134 Cal. App. 4th 822, in which
the appellate court reversed a jurisdictional finding because there was insufficient
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“evidence of a specific, defined risk of harm to [the minors] resulting from mother’s or
father’s mental illness. . . .” (Id. at p. 830.) In that case, the mother’s mental and
substance abuse problems and the father’s mental problems were not tied to actual harm
to the minors. (Id. at p. 829.) The parents were raising an older child in a clean, tidy
home. The mother had tested negative 18 times and all missed tests were excused. The
child welfare agency conducted no new investigation, relying instead on an investigation
related to an older half-sibling more than three years earlier. (Id. at p. 830.)
But here, as the department argues, there was additional evidence to support
jurisdiction. Less than a year before the petition was filed as to Allison, a petition was
filed as to her older half-sibling Richard. That petition was sustained based on findings
that he was at risk of harm because of substance abuse by both parents and a history of
domestic violence. Mother did not comply with the reunification program ordered in
Richard’s case.
In In re Drake M. (2012) 211 Cal. App. 4th 754 (Drake M.), a nine-month-old
infant was referred to the department based on allegations that father used marijuana for a
medical condition pursuant to a medical marijuana prescription, and that mother had an
extensive and unresolved history of drug abuse, mental illness, and prior department
involvement with other children. Mother was not a party to the appeal so the appellate
court did not consider the facts relating to her. (Id. at p. 758.) The court ruled that “[t]he
trial court is in the best position to determine the degree to which a child is at risk based
on an assessment of all the relevant factors in each case.” (Id. at p. 766.) It concluded
that the case fell within the group of cases under section 300, subdivision (b) which
involve “children of such tender years that the absence of adequate supervision and care
poses an inherent risk to their physical health and safety. . . .[Citations.]” (Id. at p. 767.)
In such cases, “the finding of substance abuse is prima facie evidence of the inability of a
parent . . . to provide regular care resulting in a substantial risk of harm.” (Ibid.) Since
the child in Drake M. was only 14 months old, the appellate court concluded that the
department “needed only to produce sufficient evidence that father was a substance
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abuser in order for dependency jurisdiction to be properly found.” (Ibid.) It failed to do
so. (Ibid.)
This case falls within the group of cases involving a risk of harm to a child of
tender years posed by a parent’s substance abuse. Allison is an infant. Mother, an
admitted substance abuser, had an older child in dependency proceedings and had not
complied with the program as to him. She was demonstrating much greater success in
her new inpatient program, but had been in it only two months by the time of the
jurisdictional hearing. She continued to miss drug tests during that period. Allison was
doing well, but this was under closely supervised circumstances. On this record, we find
substantial evidence to support the trial court’s jurisdictional order.
II
Mother also challenges the court’s dispositional order, arguing that even if the
evidence warranted sustaining the petition, the court could have ordered services under
the informal supervision of the department under section 360, subdivision (b) without
declaring the child a dependent of the court.2 She suggests that in the event she failed to
cooperate with informal services, the department could file a petition under section 332
and 360, subdivision (c)3. She acknowledges that the court does not have direct authority
to oversee the services or the family under informal supervision by the department. (In re
Adam D. (2010) 183 Cal. App. 4th 1250, 1259.)
2 Section 360, subdivision (b) provides: “If the court finds that the child is a
person described by Section 300, it may, without adjudicating the child a dependent child
of the court, order that services be provided to keep the family together and place the
child and the child’s parent or guardian under the supervision of the social worker for a
time period consistent with Section 301.”
3 Section 360, subdivision (c) provides: “If the family subsequently is unable or
unwilling to cooperate with the services being provided, the social worker may file a
petition with the juvenile court pursuant to Section 332 alleging that a previous petition
has been sustained and that disposition pursuant to subdivision (b) has been ineffective in
ameliorating the situation requiring the child welfare services. Upon hearing the petition,
the court shall order either that the petition shall be dismissed or that a new disposition
hearing shall be held pursuant to subdivision (d).”
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“‘At the dispositional hearing, the [dependency] court must order child welfare
services for the minor and the minor’s parents to facilitate reunification of the family.
[Citations.] The court has broad discretion to determine what would best serve and
protect the child’s interest and to fashion a dispositional order in accord with this
discretion. [Citations.] We cannot reverse the court’s determination in this regard absent
a clear abuse of discretion. [Citation.] [¶] The reunification plan “‘must be appropriate
for each family and be based on the unique facts relating to that family.’” [Citation.]’
[Citations.]” (Drake M., supra, 211 Cal.App.4th at p. 770.)
Mother argues that there is no evidence that even the apparently “benign”
maintenance services ordered here were necessary to protect Allison. We disagree. As
discussed, mother admitted a seven-year substance abuse history and had failed to
successfully complete treatment as ordered in the dependency case involving Richard.
She had a difficult beginning in the new residential program in which she was residing
with Allison. But with close supervision and intensive services, she and Allison were
doing well. On this record, we find no abuse of the court’s discretion in declaring the
child a dependent of the court and ordering services pursuant to this finding.
DISPOSITION
The court’s jurisdiction and disposition orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J. MANELLA, J.
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