In re J.W. CA4/2

Filed 10/11/22 In re J.W. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 TWO
In re J.W., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E078427
Plaintiff and Respondent, (Super.Ct.No. J291217)
v. OPINION
J.W. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Erin K.
Alexander, Judge. Affirmed.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and
Appellant J.W.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant
and Appellant T.A.
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Tom Bunton, County Counsel, Joseph R. Barrell, Deputy County Counsel for
Plaintiff and Respondent.
The juvenile court found J.W. came within the court’s jurisdiction (Welf. & Inst.
Code, § 300, subd. (b)(1))1 , and ordered he continue to be removed from the custody of
his parents, defendants and appellants T.A. (Mother) and J.J.W. (Father) (collectively,
Parents). Father contends substantial evidence does not support the findings made at the
detention, jurisdiction, and disposition hearings. Further, Father asserts the juvenile
court erred by failing to state the facts supporting its disposition order. Mother joins in
Father’s contentions. We affirm.
FACTUAL AND PROCEDURAL HISTORY
A. DETENTION
On November 4, 2021, when J.W. was 15 years old, he “was caught stealing
food from the Flying J’s truck stop.” “[T]he security guard at Flying J’s was rough with
him.” The police responded, “and they took [J.W.] to Kaiser Permanente Ontario
Medical Center, Emergency Department because of back pain.” J.W. said he had been
“in a car accident ‘a couple of months ago,’ he hurt his back, and [his] parents were
unable to take [him] to the hospital or doctor[] because they did not have enough
money.”
1 All subsequent statutory references will be to the Welfare and Institutions
Code.
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J.W. said his paternal grandfather (Grandfather) gave J.W. oxycodone for J.W.’s
backpain; J.W. had been taking oxycodone “for a couple of months.” At the hospital,
J.W. “appeared to be coming down from some unknown substance(s) [and] he himself
reported he was detoxing ‘from all narcotics.’ When asked what narcotics, [J.W.]
reported ‘only Tramadol.’ [J.W.] also reported feeling ‘a little loopy’ and stated he was
having trouble walking.” J.W. had “not been to school in ‘a couple of months.[’] ”
J.W. said “his mother and father use ‘pain pills’ due to their back issues,” and
Father “was arrested and charged for having two hundred pills on him.” J.W. reported
that he and his parents had “been homeless for three months, their car was repossessed,
and living in the city of Jurupa Valley under an overpass. [J.W.] was unable to give the
location of the overpass and stated his parent[s’] cell phone does not have service.”
Father works for Costco and earns $3,500 per month. The family also receives food
stamps. When Father is paid, the family purchases food, but, at other times, J.W. “has
to steal food.” Plaintiff and respondent San Bernardino County Children and Family
Services (the Department) detained J.W. on November 5, 2021, when he was discharged
from the hospital.
B. JURISDICTION AND DISPOSITION
Mother confirmed that she takes oxycodone for back pain. Father confirmed that
he takes tramadol for back pain and “he recently weaned himself off oxycodone.”
Father said his controlled substance arrest was “long ago.” Mother provided medical
records reflecting (1) on November 5, 2021, in an emergency room, she was prescribed
oxycodone for seven days with no refills on the prescription; and (2) on November 28,
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2021, a doctor cut the strength of Mother’s oxycodone prescription by 50 percent and
extended the prescription for 14 days. Father provided medical records reflecting that
on November 18, 2021, he was prescribed tramadol for 30 days. Mother failed to
appear at drug tests scheduled on December 27 and 28, 2021, and January 5 and 19,
2022. Father failed to appear at drug tests scheduled on December 2 and 30, 2021, and
January 13, 2022.
On January 3, 2022, the Department social worker spoke to J.W, who said
Grandfather “is addicted to pain medication and that [Grandfather] used to blame [J.W.]
for taking [Grandfather’s] medications.[2 ] [J.W.] admitted his parents did take
medications from others. . . . [J.W.] described there is addictions issues [sic] by parents
and grandparents. . . . [J.W.] admitted to taking Oxycodone and also admitted to
abusing it. He knows he needs help and he described struggling with withdrawal
symptoms. He reported that medication was prescribed to him for pain but he admitted
that the parents were giving him more than he was prescribed. He reported that at one
point he was taking 125mg a day of Oxycodone. [J.W.] knows he needs to get stay
away [sic] and he wants to go in[to a] treatment program in Tarzana. . . . [J.W.]
admitted he is addicted to pain medication and that parents may be as well. [J.W.]
2 The record reflects that, on January 3, 2022, J.W. was discussing his maternal
grandfather. However, we infer that “maternal” is a typographical error and the social
worker meant “paternal.” We make this inference because J.W.’s maternal grandfather
died of a heroin overdose, seemingly when Mother was younger. Further, the record
reflects Mother, Father, and J.W. lived with J.W.’s paternal grandparents and that
Grandfather gave J.W. oxycodone.
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admits that he is very worried about his parents given the things he has been seeing
them say and do.”
On January 18, 2022, J.W. “had unauthorized contact with the parents by email.
[J.W.] was emotionally upset and having suicidal ideations. [J.W.] was subsequently
hospitalized on this day and he remains in the hospital.” J.W. was still in the hospital on
January 26, 2022.
At the combined jurisdiction and disposition hearing, on January 26, 2022,
Parents’ attorneys asserted Parents use, but do not abuse, prescription pain medication.
Father’s attorney asserted Grandfather gave J.W. oxycodone and “[t]here’s no
information that the parents were aware of [J.W.’s] use.”
J.W.’s attorney and the Department argued that Parents abuse prescription pain
medications and that Parents were giving J.W. more oxycodone than he was prescribed.
Further, the Department argued that Parents “no-showed all of their [drug] tests” and
Parents’ medical records did not “justify the regular use” of narcotic pain medications.
The juvenile court found, “[I]t’s clear that the entire family was abusing
Oxycodone . . . . There is no medical documentation that shows that it was appropriate
for long-term use for the parents, what we have is some emergency room visits. [¶] We
also have the information that they were encouraging and providing [J.W.] with more
than what’s prescribed. He, at his young age, is able to recognize that he now has an
addiction to that pain medication and believes that the parents do as well. He’s in the
best position to know of their history of that use.” The court further remarked that
Parents “missed the drug testing that they agreed to. They were advised that the Court
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consider[s] that as [a] positive test.” The juvenile court concluded, “[Parents] were
willingly administering additional prescribing [sic] Oxycodone to him which led to a
serious drug addiction on his behalf.”
The juvenile court found true the allegations that J.W. is at risk of serious
physical harm because: (1) Parents failed “to supervise or protect the child adequately”;
(2) Parents willfully or negligently failed to provide J.W. “with adequate food, clothing,
shelter, or medical treatment”; and (3) Parents were unable to provide regular care for
J.W. due to their substance abuse. (§ 300, subd. (b)(1).) The factual allegations to
support those assertions included: (A) Parents have untreated substance abuse
problems; and (B) on November 4, 2021, J.W. “was found alone and unsupervised [and
was] caught stealing food from a truck stop.”
As to the disposition, the juvenile court found “that continuance in the home of
the parents is contrary to [J.W.’s] welfare and that there’s a substantial danger to the
physical health and safety and no reasonable means [to] protect him ab[sent] the
removal.” Thus, the court ordered J.W. continue to be removed from Parents’ physical
custody.
DISCUSSION
A. DETENTION
Parents contend that, at the detention hearing, the juvenile court erred by
ordering J.W. detained from Parents’ physical custody. The Department asserts that the
“findings and orders made at detention are generally made moot by the jurisdiction and
disposition determination and thus cannot be considered on appeal.”
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“[A] detention order . . . is a temporary order that lasts only until the placement
decision is made in a dispositional order.” (In re Sabrina H. (2007) 149 Cal.App.4th
1403, 1420, fn. omitted.) In other words, detention orders are superseded by disposition
orders. This court cannot provide any effectual relief by reviewing the superseded
detention order, which means Parents’ challenge to the detention order is moot. (In re
Julien H. (2016) 3 Cal.App.5th 1084, 1088, fn. 7.)
B. JURISDICTION
Parents contend the jurisdiction findings are not supported by substantial
evidence.
“ ‘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.” ’ ” (In re I.J. (2013) 56 Cal.4th 766, 773.)
A child comes within the jurisdiction of the court under section 300, subdivision
(b)(1), 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 the
child’s parent or guardian to adequately supervise or protect the child, . . . 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
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to provide regular care for the child due to the parent’s or guardian’s mental illness,
developmental disability, or substance abuse.”
1. SERIOUS PHYSICAL HARM DUE TO THE INABILITY TO
ADEQUATELY SUPERVISE
The juvenile court found J.W. is at substantial risk of suffering serious physical
harm due to Parents’ inability to adequately supervise or protect J.W. (§ 300, subd.
(b)(1).) In terms of the facts, the juvenile court found Parents have untreated substance
abuse issues.
J.W. told the social worker that the “[P]arents did take medications from others”
and that “there is addictions issues [sic] by parents.” That evidence indicates Parents
are addicted to prescription medications. Father said that he “weaned himself off
oxycodone” because the clinic that had been providing his prescription “changed
management and he was no longer able to get a prescription.” That evidence indicates
that Father’s oxycodone prescription had a questionable basis because if there were a
legitimate basis for the prescription, Father presumably could have kept his prescription
despite a change in management. Parents failed to appear at all of their drug tests and
had been informed that the failure to appear would be deemed a positive test result.
Parents’ avoidance of all the drug tests indicates a drug problem. The foregoing
evidence supports the finding that Parents abuse prescription pain medications.
J.W. “admitted that the parents were giving him more than he was prescribed,”
i.e., more oxycodone and tramadol. J.W. is addicted to pain medication. In January
2022, J.W. “described struggling with withdrawal symptoms,” and he “want[ed] to go
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in[to a] treatment program.” When J.W. was initially taken to the hospital in November
2021, he “appeared to be coming down from some unknown substance(s) [and] he
himself reported he was detoxing ‘from all narcotics.’ When asked what narcotics,
[J.W.] reported ‘only Tramadol.’ [J.W.] also reported feeling ‘a little loopy’ and stated
he was having trouble walking.”
One could reasonably conclude from the foregoing evidence that Parents’
addiction led them to provide drugs to J.W., who in turn became addicted to the same
drugs as Parents. By providing drugs to J.W. to the point that he was feeling
“ ‘loopy,’ ” struggling to walk, and addicted, Parents failed to adequately supervise and
protect J.W. As a result of the family’s shared addiction, J.W. is at risk of serious
physical harm or illness due to the potential for overdosing or accidents that could occur
when he and/or Parents are under the influence, e.g., J.W.’s difficulty walking. Thus,
there is substantial evidence that Parents are unable to adequately supervise or protect
J.W., which places J.W. at substantial risk of serious physical harm. (§ 300, subd.
(b)(1).)
2. SERIOUS PHYSICAL HARM DUE TO LACK OF CARE
Next, the juvenile court found J.W. has suffered, or there is a substantial risk
J.W. will suffer, serious physical harm because Parents failed “to provide the child with
adequate food, clothing, shelter, or medical treatment.” (§ 300, subd. (b)(1)).
On November 5, 2021, J.W. “reported he was in a car accident ‘a couple of
months ago,’ he hurt his back, and [his] parents were unable to take [him] to the hospital
or doctor[] because they did not have enough money. [J.W.] was given Oxycodone by
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[Grandfather]. [J.W.] stated [Grandfather] had ‘a problem’ with Oxycodone but has
now gotten better. [J.W.] stated he had been taking Oxycodone for a couple of months
because of the car accident but then reported he stopped taking them a couple of months
ago. [J.W.] appeared to be coming down from some unknown substance(s) as he
himself reported he was detoxing ‘from all narcotics.’ When asked what narcotics,
[J.W.] reported ‘only Tramadol.’ [J.W.] also reported feeling ‘a little loopy’ and stated
he was having trouble walking but denied assistance from [the social worker]. [J.W.]
reported taking Tramadol and stated he last took it on 11/03/2021 as the pills ran out
and his parents did not have money to refill the prescription.”
In January 2022, J.W. “reported that medication was prescribed to him for pain
but he admitted that the parents were giving him more than he was prescribed. He
reported that at one point he was taking 125mg a day of Oxycodone. . . . [J.W.] wants
to go in[to a] treatment program in Tarzana.”
One could reasonably conclude from the foregoing evidence that Parents failed
to provide J.W. with adequate medical care when his back was injured in the car
accident because they did not seek medical attention for him. Instead, Grandfather gave
J.W. oxycodone, which led to J.W.’s addiction to pain medication. It appears that, at
some point, Parents did seek medical attention for J.W. because J.W. said Parents gave
him more pain medication than was prescribed, which implies that J.W. went to a doctor
and pain medication was prescribed to him. However, seeking that care did not remedy
the previous lack of care because Parents ultimately gave J.W. more pain medication
than was prescribed to him, which furthered his drug addiction to the point that he had
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visible withdrawal symptoms and struggled to walk. In sum, Parents failed to provide
J.W. with medical care, did not intervene to prevent him from becoming addicted to
drugs, and then gave J.W. excessive amounts of the drugs to which he was addicted.
One could reasonably conclude from that evidence that Parents did not provide J.W.
with adequate medical care.
We turn to whether the lack of care was due to negligence. Section 300 is meant
to protect children from the “pervasively negligent conduct of their parents or
guardians.” (Jordy v. Humboldt (1992) 11 Cal.App.4th 735, 743.) Section 300 “does
not extend to every isolated lapse of parental judgment that a [judge] may in retrospect
find negligent. No one would suggest a child could be taken from its parent where the
parent, in an isolated lapse, failed to prevent the child from darting into the street, or
failed to provide adequate training in the use of roller skates, or left a ladder leaning in a
place where the child might find it. [Citation.] Yet in each of these examples, a child
could potentially sustain [an] injury . . . , and a [judge] could potentially find the injury
was the result of parental neglect.” (Id. at p. 744.)
Father earns $3,500 per month and the family receives food stamps. This
evidence reflects that Parents have an income. On November 5, 2021, Parents were
both seen in the emergency room, and Mother was prescribed oxycodone. On
November 18, 2021, Father went to the doctor and was prescribed Tramadol. This
evidence reflects Parents could afford medical care to obtain their prescriptions. Mother
“took pre-Med courses for a year and also classes to become a[n] X-ray tech.” This
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evidence indicates that Mother is educated about medical issues and therefore would
understand that J.W.’s back pain required professional medical attention.
One could reasonably conclude from the foregoing evidence that Parents had
money for medical care and understood the need for medical care, but they failed to
provide J.W. with proper medical care for his back pain. Instead, Parents delayed
taking J.W. to a doctor and then gave J.W. excessive amounts of oxycodone and
tramadol, which led to him being addicted to the medications, and led to him being
intoxicated to the point of “feeling ‘a little loopy’ ” and “having trouble walking.” The
lack of proper medical care and the giving of excessive medication went on for months,
which indicates the lack of adequate medical care for J.W. was a pervasive issue thereby
demonstrating negligent conduct. (§ 300, subd. (b)(1) [“the willful or negligent failure
of the parent or guardian to provide the child with . . . medical treatment”].) In sum, the
juvenile court’s finding is supported by substantial evidence.
C. DISPOSITION
1. SUBSTANTIAL EVIDENCE
Parents contend the order removing J.W. from Parents’ physical custody is not
supported by substantial evidence. The standard of review is set forth ante, so we do
not repeat it here.
“A dependent child shall not be taken from the physical custody of his or her
parents . . . with whom the child resides at the time the petition was initiated, unless the
juvenile court finds clear and convincing evidence . . . [¶] (1) There is or would be a
substantial danger to the physical health, safety, protection, or physical or emotional
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well-being of the minor if the minor were returned home, and there are no reasonable
means by which the minor’s physical health can be protected without removing the
minor from the minor’s parent’s . . . physical custody.” (§ 361, subd. (c)(1).)
The record reflects that Parents are addicted to prescription pain pills. In
particular, Parents failed to appear for all of their drug tests; J.W. said that Parents take
other people’s medications; and J.W. said “there is addictions issues [sic] by parents.”
Parents gave J.W. excessive amounts of prescription pain pills, and J.W. became
addicted to the pills. J.W. suffered withdrawal symptoms and felt he needed to go to a
treatment center to overcome his addiction.
One could reasonably conclude from the foregoing evidence that if J.W. were to
live with Parents he would be at risk of his addiction becoming further entrenched
because (1) Parents are addicted to the same drugs as J.W., and (2) Parents supplied
J.W. with the drugs. Thus, there is substantial evidence of a substantial danger to J.W.’s
physical health if he were returned home, and there are no reasonable means by which
J.W.’s physical health can be protected without removing J.W. from Parents’ physical
custody. (§ 361, subd. (c)(1).)
2. STATEMENT OF FACTS
Parents contend the juvenile court erred by not stating the facts supporting the
removal order. “The court shall state the facts on which the decision to remove the
minor is based.” (§ 361, subd. (e).)
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When making the jurisdiction findings, the juvenile court made express factual
findings. For example, the court found “that the entire family was abusing
Oxycodone. . . . There is no medical documentation that shows that it was appropriate
for long-term use for the parents, what we have is some emergency room visits.” The
juvenile court did not repeat the relevant facts in the disposition phase of the hearing.
However, the court did adopt various recommended findings from the Department’s
jurisdiction and disposition report, such as Parents having failed to make “progress in
alleviating [their] problems.” Between the facts stated by the juvenile court in the
jurisdiction phase of the hearing and the adopted findings that Parents had not made
progress with their issues, there was a sufficient factual explanation for the removal
order.
Further, in the jurisdiction phase of the proceedings, Parents argued that they
used, but did not abuse, prescription medications. Parents’ primary argument against
jurisdiction and removal was addressed in the jurisdiction phase by the court stating the
facts supporting its rejection of that argument, e.g., “There is no medical documentation
that shows that it was appropriate for long-term use for the parents, what we have is
some emergency room visits.” Perhaps the juvenile court could have made a clearer
record by repeating the relevant facts in the disposition phase of the hearing, but, given
the numerous facts the court stated in the jurisdiction phase of the hearing and the
adopted findings in the disposition phase, we conclude the juvenile court did not err.
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DISPOSITION
The disposition order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
RAPHAEL
J.
MENETREZ
J.
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