In re N.B. CA4/3

Filed 5/30/13 In re N.B. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re N.B., A Person Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES
AGENCY,
G047733
Plaintiff and Respondent,
(Super. Ct. Nos. DP023081)
v.
A.B., OPINION
Defendant and Appellant.
Appeal from orders of the Superior Court of Orange County, Deborah J.
Servino, Judge. Affirmed.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and
Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su,
Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
Appellant (Mother) challenges the sufficiency of the evidence to support
the juvenile court’s jurisdictional and dispositional orders regarding her two-year-old son
N.B. Finding substantial evidence to support the orders, we affirm.
FACTS
When N.B. was born in 2010, Mother was only 15 years old. Although she
stopped using drugs at that time, she resumed using marijuana in 2011 and started using
methamphetamine on a daily basis in early 2012. Father also has a history of drug use, as
well as a criminal record. He separated from Mother after N.B. was born and is not a
party to this appeal.
Since N.B. was born, his primary caretakers have been his maternal
grandmother Elizabeth and her boyfriend Lee. They took N.B. and Mother into their
home, and they also care for Mother’s teenage brother Jason. Like Mother and Father,
Elizabeth has used a variety of drugs over the years, and Jason was known to be a
“pothead.” Given all the drug use that was going on in N.B.’s family, it is hardly
surprising that things were chaotic at his home. In fact, since N.B. was born, the police
have been called out to the home about once a month for one thing or another.
Rather than going into all of the calls, we will simply describe the most
salient ones. In December 2011, Elizabeth’s former pimp broke into the house in the
middle of the night and threatened Elizabeth at gunpoint. He stole $300 from her and
threatened to kill her children if she did not come back to work for him.
In February 2012, Elizabeth was arrested after methamphetamine and drug
paraphernalia were found in her bedroom. Elizabeth told the police she always kept her
bedroom door locked, and N.B. did not have access to the room.
In March 2012, Mother ran out into the street in an apparent suicide
attempt. When the police arrived, she admitted this was not the first time she had tried to
kill herself. At the age of 13 she tried to hang herself and was briefly admitted to a
psychiatric hospital. Mother claimed the hanging incident was merely “a plea for
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attention.” Although she was prescribed various anti-anxiety medications, she stopped
taking them after a few months because she did not like the way they made her feel.
In April 2012, Mother got into a scrap with the paternal grandmother Debra
after Mother tried to serve Father with custody papers. According to Mother, she kicked
Debra in self-defense after Debra pushed her. However, Debra denied being the
aggressor. She claimed Mother punched her in the head after she tried to take the
custody papers away from her.
In May 2012, Elizabeth wanted to go visit Debra and Father. Mother didn’t
like that idea, so after Elizabeth got in her car, she stood behind it with N.B. in her arms
to prevent her from leaving. After Lee moved Mother out of the way, she set N.B. down
and began pounding on Elizabeth’s car. Lee pushed her away from the car, and as they
were fighting, they fell into the garage door. Lee claimed Mother punched him during
the ordeal, and Mother said Lee kicked her, but no charges were filed in connection with
the incident.
In July 2012, Mother came home around midnight to get a lighter.
Elizabeth thought Mother was high, and upon finding a methamphetamine pipe in
Mother’s purse, she called the police. Mother was arrested for possessing drug
paraphernalia but released the following day.
It was against this backdrop that N.B. was detained on September 28, 2012.
That morning, Elizabeth dropped N.B. off at preschool, but later in the morning, the
power went out at the school, so Mother returned and picked him up. When they got
home, Mother and Elizabeth started fighting. The police were called, and when they
arrived, Elizabeth consented to a search of the house.
On the kitchen counter, the police noticed a makeup bag sitting next to
some children’s clothing. When they searched the bag, they found three
methamphetamine pipes, which Mother admitted belonged to her. She said she used
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methamphetamine regularly and also smoked marijuana once in a while. However, she
insisted she never brought any drugs into the house.
When questioned by the police, Elizabeth admitted she had been smoking
marijuana earlier that morning. She said she smoked every morning after N.B. went to
school and at night after he went to bed. She also produced a medical marijuana card that
appeared to be valid. She admitted knowing Mother used methamphetamine but claimed
there was nothing she could do about it because she had “no control over her daughter.”
Elizabeth also admitted to using methamphetamine but claimed she had not done so in
several months.
As for N.B., he appeared to be fine. Although he suffers from asthma,
there was no indication he was being neglected or mistreated. However, the officers, in
consultation with a social worker, felt the home was unsuitable for a two year old.
Therefore, they detained N.B. and placed him in a foster home, where he remains to this
day. Mother was arrested and taken into custody, but she was released later that night.
The next day, the police were again called out to the house, due to a dispute between
Mother and Elizabeth. The responding officers discovered Elizabeth had kicked holes in
two of the bedroom doors. They convinced Mother to leave the house until she and
Elizabeth both had a chance to cool down.
A few days later, Mother told the social worker she first started using
marijuana when she was 13 years old and had been using methamphetamine on a daily
basis for the past eight months. However, she claimed she had never used drugs or been
under the influence around N.B. Describing the dynamics in the household, she said that
both she and Elizabeth are bipolar and have anxiety issues. And although Elizabeth helps
her out a lot with N.B., she said she hates her mother because she is “fucked up in the
head” and verbally abuses her. She also said Elizabeth and Lee argue and yell at each
other a lot.
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Elizabeth told the social worker she has an extensive narcotics history and
has pretty much “done it all” when it comes to drugs. However, she said she completed a
rehabilitation program in 2011 and limits her drug use now to medicinal marijuana.
Although she uses marijuana daily, she said she never smokes or is under the influence
around N.B. because she has to take care of him most of the time. She said Mother helps
out with N.B. once in a while, but Mother has been on such a drug binge lately that she
and Lee essentially raise the child by themselves.
When the social worker asked Father about Mother and Elizabeth’s
relationship, he said they have “‘gnarly fights’” when they are “‘coming down from
[methamphetamine].’” He denied any physical fighting between them but said Mother
would sometimes get Elizabeth so angry that she would punch holes in the wall of their
home. The record also shows Mother often fought with her brother Jason. In fact, the
police were called to the home several times to stop them from fighting.
On October 3, 2012, the juvenile court found sufficient grounds to detain
N.B. and granted Mother monitored visitation for two hours twice a week. At the
hearing, Mother’s attorney claimed that since N.B. was detained, Mother had attended
one Narcotics Anonymous (NA) meeting and “has hit the ground running with respect to
sobriety.”
Over the course of the next few weeks, N.B. was reported to be happy and
healthy in his foster home. Elizabeth was considered a possible candidate for placement,
but citing her “past history,” she refused to provide any clearance information to the
social worker. Mother told the social worker it was “an eye opener” for N.B. to be taken
away from her. She said she has been sober since then, and her anxiety has gone down
because she is no longer using drugs. She also said she has enrolled in a perinatal
program. As part of the program, she had begun attending parenting and NA classes and
working on a 12-step program. She also started attending group therapy and undergoing
drug testing. As expected, her first few drug tests were positive, due to her past drug use,
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but since then her tests have all been negative. Her counselor reported she was adjusting
to the perinatal program and beginning to open up during her therapy sessions. She was
described as cooperative and willing to participate in services.
Visitation with N.B. was somewhat of a mixed bag. The visits were
monitored by N.B.’s foster mother and also attended by Elizabeth and Lee at times.
During one of the visits, Mother brought along her boyfriend, even though he was not an
authorized visitor at that time. Mother also had trouble handling N.B. at times and often
gave him candy to get him to behave. And on one visit, Mother left early, saying she had
to catch a bus. Early on in the case, the foster mother reported Mother “doesn’t have any
parenting skills as far as I can see.” However, she subsequently reported that Mother was
doing “OK, not bad” with N.B. Elizabeth tended to be rather erratic when she attended
the visits, so her visitation time was reduced. N.B. seemed happy to see his mother
during the visits and cried when she left. However, after about five minutes, he was fine.
During this period, Mother told the social worker she was looking for work
and hoping to enroll in community college. However, she was still living with Elizabeth
and Lee and relying on them for support. The social worker expressed concern that, in
light of past events, this environment might not be conducive for Mother to overcome her
problems. She did not believe Mother was ready to have N.B. returned to her at this
time.
At the jurisdiction hearing on November 15, 2012, Mother submitted on the
social worker’s reports, and Father pleaded no contest. The juvenile court determined
there was sufficient evidence to support the allegation the parents had failed to protect
N.B. and he was at substantial risk of serious physical harm due to their inability to do so.
Therefore, it assumed jurisdiction over N.B. and set a disposition hearing two weeks out.
During that fortnight, Mother continued to participate in her perinatal
program and visit N.B. regularly. Taking Mother’s lead, Elizabeth also enrolled herself
in a drug treatment program. She admitted using methamphetamine in the wake of
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N.B.’s detention but claimed that, other than using marijuana for medicinal purposes, she
was committed to maintaining a sober lifestyle. Father displayed no such ambitions; he
repeatedly tested positive for drugs and failed to show up for many of his scheduled visits
with N.B.
At the disposition hearing on November 28, 2012, Mother testified she was
scheduled to begin community college in January 2013. Describing her progress in her
perinatal plan, she said she had completed seven substance abuse classes, four general
counseling sessions and meets regularly with her NA sponsor and her guidance
counselor. She is halfway through the first step of her 12-step program. She also has
completed four parenting classes and attends self-help meetings whenever she can.
Mother said the parenting classes have taught her how to set boundaries
with N.B. and communicate with him more effectively. She said she is surrounding
herself with sober people and cutting the bad people out of her life. Although she
admitted she has had problems with Lee in the past, she denied having any serious
disagreements with Elizabeth. In fact, she said she and Elizabeth get along “perfectly”
now. Mother also denied ever being under the influence around N.B. She said she
understands that drug use can impede a person’s parenting skills. And while she wants
N.B. returned to her care, she has learned from her treatment that it usually takes about
four to six months in treatment before a person is “good” and “solid” and has a “good
grasp” on their sobriety.
Elizabeth testified she was N.B.’s primary caretaker before he was
detained. She admitted to an extensive history of drug use but claimed she only used
methamphetamine once after N.B. was detained, and before then, she had not used in
about two years. She is currently enrolled in a nine-month treatment program that
includes substance abuse, parenting and anger management classes. She said the
program has taught her how to communicate better with Mother and to live a healthier
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lifestyle. Although she still uses marijuana, it is doctor recommended to help alleviate
her anxiety.
At the conclusion of the disposition hearing, Mother’s attorney asked that
N.B. be returned to Mother under a family maintenance plan. However, county counsel
and N.B.’s attorney urged the court to keep N.B. in foster care and authorize continued
reunification services for Mother and Father, which is what the juvenile court decided to
do. While acknowledging Mother appeared to love N.B. very much, the court
determined it was in N.B.’s best interest to remove him from her care. It denied Mother’s
request for return and set the matter for a six-month review hearing on May 28, 2013.
I
Mother contends there is insufficient evidence to support the juvenile
court’s decision to establish jurisdiction over N.B. We disagree.
“In juvenile cases, as in other areas of the law, the power of an appellate
court asked to assess the sufficiency of the evidence begins and ends with a determination
as to whether or not there is any substantial evidence, whether or not contradicted, which
will support the conclusion of the trier of fact.” (In re Katrina C. (1988) 201 Cal.App.3d
540, 547.) In making this determination, “[w]e do not evaluate the credibility of
witnesses, reweigh the evidence, or resolve evidentiary conflicts.” (In re L.Y.L. (2002)
101 Cal.App.4th 942, 947.) Rather, we give respondent “the benefit of every reasonable
inference” and resolve all conflicts in favor of the trial court’s decision. (In re Autumn H.
(1994) 27 Cal.App.4th 567, 576.)
In this case, the juvenile court assumed jurisdiction over N.B. pursuant to
Welfare and Institutions Code section 300, subdivision (b). Under that section,
jurisdiction is justified if “[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 . . . to adequately supervise or protect the child[.]” (Welf. & Inst. Code,
§ 300, subd. (b).) The statute is designed not only to protect child who have been abused
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or neglected but “‘to ensure the safety, protection, and physical and emotional well-being
of children who are at risk of that harm.’ [Citation.] ‘The court need not wait until a
child is seriously abused or injured to assume jurisdiction and take the steps necessary to
protect the child. [Citation.]” (In re I.J. (May 9, 2013, S204622) __ Cal.4th __, __.)
Despite all her past problems, Mother claims respondent failed to prove
that, at the time of the jurisdiction hearing, N.B. was at substantial risk of serious
physical harm due to her failings. While she admits having drug, mental health and
family issues, she insists there is no evidence they jeopardized N.B.’s physical well-being
or impeded her ability to care for him.
In so arguing, Mother compares herself to the parents in In re Destiny S.
(2012) 210 Cal.App.4th 999 and In re Drake M. (2012) 211 Cal.App.4th 754, whose drug
use was found not to warrant juvenile court jurisdiction over their children. However, in
the latter case, there was no evidence the father was a drug abuser. In fact, his authorized
use of medical marijuana was so circumspect that it never interfered with his work,
caused him legal problems or hampered his ability to care for his son. (Id. at pp. 763-
769.) And while the mother in the former case did use “hard drugs,” she remained a
positive force in her daughter’s life, kept their home free of drug paraphernalia, and
already had three months of sobriety under her belt by the time of the jurisdictional
hearing. (In re Destiny S., supra, 210 Cal.App.4th at pp. 1002-1005.)
Mother’s drug use was much more serious and deleterious than the parents
in these two cases. Not only did she use marijuana on occasion, she was so addicted to
methamphetamine she could hardly make it through the day without a hit. Indeed,
Elizabeth reported Mother was on such a binge around the time N.B. was detained that
she and Lee had to assume nearly all of his childcare responsibilities. And while Mother
said she never used drugs or was under the influence around N.B., she did bring drug
paraphernalia into the home and was twice arrested at the house for having
methamphetamine pipes in her possession. Elizabeth, a long time drug user, was also
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arrested for having methamphetamine and drug pipes at the house. And by the time of
the jurisdictional hearing, neither Mother nor Elizabeth had been in drug treatment very
long. In fact, less than a month had passed since Mother first tested clean.
What’s more, substance abuse was not Mother’s only problem. Like
Elizabeth, she is bipolar and suffers from anxiety, yet she shirked the medications that
were prescribed for her. In 2008, she was hospitalized for attempting to commit suicide,
and she tried to kill herself again, by running out into the street, just six months before
N.B. was detained. While Mother downplays the volatility in the household, her fighting
with Elizabeth, Lee and Jason led to police intervention on multiple occasions. And
unfortunately, N.B. was sometimes in the mix of things when tempers flared. For
example, during the incident on May 7, 2012, Mother was holding N.B. in her arms when
Lee physically moved her out of the way of Elizabeth’s car. Then, after Mother put N.B.
down, she and Lee got into a physical altercation right there in the driveway. Aside from
the obvious physical danger this posed to N.B., it must have been traumatic for him to see
his family engaging in such violent behavior.
While there is no evidence N.B. was ever physically harmed or neglected,
the law “does not require that a child actually be abused or neglected before the juvenile
court can assume jurisdiction.” (In re I.J., supra, __ Cal.4th at p. __.) Rather, the
evidence need only show there is a “‘substantial risk’ that the child will be abused or
neglected.” (Ibid.) And although “previous acts of neglect, standing alone, do not
establish a substantial risk of harm” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565),
the court may properly consider conduct that predates the jurisdictional hearing in
assessing the risk of harm to the child. (In re Janet T. (2001) 93 Cal.App.4th 377, 388; In
re Rocco M. (1991) 1 Cal.App.4th 814, 824.) Based on the evidence in this case, the
juvenile court could properly infer N.B. was presently at risk of serious physical harm
due to Mother’s history of drug use and unstable behavior. We therefore uphold its
assumption of jurisdiction over N.B.
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II
Mother also contends there is insufficient evidence to support the juvenile
court’s decision to remove N.B. from her care. Again, we disagree.
Pursuant to Welfare and Institutions Code section 361, subdivision (c)(1),
the juvenile court may remove a dependent child from his parents’ custody upon clear
and convincing evidence of a substantial danger to the child’s physical health or well-
being if there are no other reasonable means to protect the child. Such an order “is proper
if it is based on proof of parental inability to provide proper care for the minor and proof
of a potential detriment to the minor if he or she remains with the parent. [Citation.] 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.
[Citations.]” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other
grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 736.)
This standard has obvious parallels to the jurisdictional issue discussed
above. Indeed, the juvenile court’s jurisdictional findings are prima facie evidence the
child cannot safely remain in his or her parent’s home. (In re Hailey T. (2012) 212
Cal.App.4th 139, 146 (Hailey T.).) Nevertheless, Mother argues N.B.’s removal was
unjustified because he could have safely remained in her care under a family maintenance
plan. In so arguing, Mother relies on Hailey T., but that case is inapt.
In Hailey T., the juvenile court’s removal order with respect to a four-year-
old girl was reversed because the cause of her infant brother’s injuries were the subject of
sharp dispute, her parents had a good relationship, they did not have any substance abuse
problems and “there was no evidence [they] suffered from mental health conditions,
developmental delays or other social issues that are often at the root of dependency cases
and might place children at continuing risk in the home.” (Hailey T., supra, 212
Cal.App.4th at p. 147.)
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In contrast to the parents in Hailey T., Mother is afflicted with a variety of
problems that have impaired her ability to care for N.B. A single teenage mother with
mental health issues, she was addicted to drugs and overwhelmed with the prospect of
caring for N.B. Elizabeth and Lee did their best to take up the slack, but the dynamics of
the household were simply not conducive to raising a two year old. The fighting and the
drug use among N.B.’s family members led to police involvement on many occasions,
and although Mother and Elizabeth have begun substance abuse treatment, the case is still
young. In light of their past drug abuse and everything else that has happened in the
home since N.B. was born, the juvenile court was justified in removing him from
Mother’s care. Because the court’s removal order enjoys substantial evidentiary support,
we are powerless to disturb it.
DISPOSITION
The juvenile court’s jurisdictional and dispositional orders are affirmed.
BEDSWORTH, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
THOMPSON, J.
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