In re M.P. CA2/3

Filed 9/23/20 In re M.P. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
In re M.P. et al., Persons Coming B302090
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 19LJJP00694A,
AND FAMILY SERVICES, 19LJJP00694B
Plaintiff and Respondent,
v.
Me.P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Michael C. Kelley, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal,
for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and Peter Ferrera, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_________________________
The juvenile court assumed jurisdiction over mother’s
13- and seven-year-old daughters upon a finding that mother’s
recurring abuse of Oxycontin posed a substantial risk to the
children’s physical health and safety. (Welf. & Inst. Code, § 300,
subd. (b).)1 The court did not declare the children dependents.
Instead, it ordered informal supervision and family maintenance
services under section 360, subdivision (b). Mother contends
the evidence is insufficient to support the jurisdictional finding.
We disagree. While mother had made meaningful progress
toward overcoming her addiction, the evidence showed she had
relapsed in the past after making similar progress, and the
possibility of another relapse posed a continuing risk of harm
to her children that warranted informal supervision. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Consistent with our standard of review, we state the facts
in the light most favorable to the juvenile court’s findings,
resolving all conflicts and drawing all reasonable inferences
to uphold the court’s order, if possible. (In re Christopher R.
(2014) 225 Cal. App. 4th 1210, 1216 (Christopher R.).)
The children, 13-year-old M.P. and seven-year-old V.P.,
live with mother, their maternal aunt, and their maternal
grandparents. Mother and father are divorced. Mother has
primary custody of the children and father has visitation
two days a week for a few hours and every other weekend.
In July 2019, the Los Angeles County Department of
Children and Family Services (Department) received a referral
alleging M.P. had walked in on mother “ ‘free basing’ ” drugs in
a bedroom that mother shared with her younger daughter, V.P.
1 Statutory references are to the Welfare and Institutions
Code.
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M.P. described walking into the room and seeing mother smoking
something off a piece of foil with a pen and a lighter. She had
smelled the distinctive scent for about a year and knew it was
drugs, but she did not know what type of drug it was. She told
her grandmother and aunt. Her grandmother told M.P. she
would “handle it” and instructed M.P. “not to tell anyone.”
M.P. also described an incident when mother had been
intoxicated and fell down the stairs while caring for V.P. The
13-year-old explained, “My mom fell down the stairs late at night,
in the dark. It was normal for her to be smoking as the smell
had been around for a while. [V.P.] was by her side [when] mom
fell down the stairs.” Mother told father she was just drunk
at the time. She acknowledged V.P. “freaked out” and was
“hysterically crying.”
Mother admitted using Oxycontin for about five years. A
coworker supplied her with the drug. At her worst she was using
“about four to five pills” and “smoking them.” She said she used
“foil and a pen” and admitted, “I would use everywhere; in my
car, anywhere.” She acknowledged she became more aggressive
and isolated herself when she used drugs. She told the social
worker, “I’m sure I placed [the children] at risk when I was
using.” She said having M.P. “catch” her was “an eye opener.”
In March 2019, mother told the maternal grandparents
about her drug problem and attempted a “home detox[ ].” She
relapsed after 60 days of sobriety. Although she was isolating
herself again, the maternal grandparents “never addressed
or asked anything” about her relapse. She went back to using
two to three pills a day. Eventually, in May 2019, her parents
questioned her about her sobriety. She broke down and told
them she could not overcome her addiction on her own.
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On June 10, 2019, mother entered an inpatient treatment
program. She completed “28 to 30 days” of inpatient treatment,
followed by two weeks of “transitional living.” She continued to
attend day treatment sessions and to test for drugs through the
program. She said she might only attend her outpatient program
for another two weeks depending on her insurance coverage.
The maternal grandmother defended her decision not
to inform father of mother’s addiction. She said she and the
grandfather anticipated the Department would become involved
if father knew what had happened. She maintained the children
were not in danger, but also acknowledged mother was “driving
around with the girls and she [was] higher than a kite.”
On October 14, 2019, mother’s drug treatment program
provided a letter confirming her participation. The program
reported mother “presents in the preparation stage of change
with regards to the disease concept and readiness to change
her behavior.” All of mother’s random drug tests were clean.
On October 23, 2019, the juvenile court held a combined
jurisdiction and disposition hearing. Mother testified. She
admitted she had struggled with Oxycontin, but maintained she
had learned to cope with the “triggers” that led to her drug abuse.
She said she was committed to completing her programs without
a court order, but acknowledged her insurance might not cover
the full amount of her treatment. If she lost insurance coverage,
she planned to continue attending support meetings and to
receive counseling from her sponsor. Her parents had been
attending meetings with her.
Mother said her drug use “became an everyday addiction”
during the past year. A friend at work had introduced her to
Oxycontin. She felt depressed during her divorce and had been
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looking for something to “numb the pain.” She said tensions with
father remained high and there had been recent disputes over
visitation. She planned to return to work in the coming month
and did not know whether the friend who supplied her with
Oxycontin was still there.
Mother admitted there were times she cared for the
children while under the influence, and she acknowledged her
drug abuse impacted her children emotionally, as she was not
“there as much as [she] thought [she] was” when she was using.
She also acknowledged the drug was more powerful and
dangerous when she smoked it.
Mother’s counsel asked the juvenile court to dismiss the
petition. She argued mother did not need the Department’s
supervision because mother had voluntarily entered treatment.
The children’s counsel argued the court should sustain the drug
abuse allegation, emphasizing mother’s treatment program
reported she was only in the “preparation stage” of recovery.
The Department joined the children’s counsel, adding that the
family strife that triggered mother’s drug use was ongoing.
The juvenile court sustained the petition under section 300,
subdivision (b), finding mother’s history of substance abuse
posed a substantial risk of harm to the children. With respect
to disposition, the court declined to adjudicate the children
dependents. Instead it ordered the family to receive six months
of Department supervised family maintenance services under
section 360, subdivision (b).
Mother filed a timely notice of appeal from the disposition
order.
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DISCUSSION
Under section 360, subdivision (b), “[i]f 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 six to 12 months. If the court orders
a program of informal supervision, “ ‘it does not dismiss the
dependency petition or otherwise set it aside. The true finding
of jurisdiction remains. It is only the dispositional alternative
of declaring the child a dependent that is not made.’ ” (In re
Adam D. (2010) 183 Cal. App. 4th 1250, 1260 (Adam D.), quoting
Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure
(2009) § 2.124[2], pp. 2-283 to 2-284.) An order for informal
supervision under section 360, subdivision (b) is an appealable
disposition order. (Adam D., at p. 1261.)
The juvenile court asserted jurisdiction under section 300,
subdivision (b). The statute authorizes jurisdiction upon a
finding, by a preponderance of the evidence, that a “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 provide regular care for
the child due to the parent’s . . . 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 [citations], the court need not wait until a child is
seriously abused or injured to assume jurisdiction and take
steps necessary to protect the child. [Citation.] The court may
consider past events in deciding whether a child presently needs
the court’s protection. [Citation.] A parent’s ‘ “[p]ast conduct
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may be probative of current conditions” if there is reason to
believe that the conduct will continue.’ ” (Christopher R., supra,
225 Cal.App.4th at pp. 1215–1216.) An unresolved drug problem
compromises a parent’s “ability to care for [her] child, thus
justifying the assumption of jurisdiction.” (In re R.R. (2010)
187 Cal. App. 4th 1264, 1284.)
In addition, the Legislature has declared “[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. Successful
participation in a treatment program for substance abuse may
be considered in evaluating the home environment.” (§ 300.2;
Christopher R., supra, 225 Cal.App.4th at p. 1216.)
We review the juvenile court’s jurisdictional findings for
substantial evidence. (Christopher R., supra, 225 Cal.App.4th
at p. 1216.) “Under this standard ‘[w]e review the record to
determine whether there is any substantial evidence to support
the juvenile court’s conclusions, and we resolve all conflicts
and make all reasonable inferences from the evidence to uphold
the court’s orders, if possible.’ ” (Ibid.)
There was substantial evidence that mother’s drug abuse
placed the children at risk of serious physical harm. Mother
admitted her Oxycontin use had become “an everyday addiction”
during the past year. She was using “about four to five pills”
a day and “smoking them.” She used “everywhere,” including
in the car and in the home. The maternal grandmother reported
mother had been “driving around with the girls and she [was]
higher than a kite.” Before catching mother freebasing
Oxycontin, 13-year-old M.P. had smelled the distinctive scent
of drugs around the home for about a year. When asked about
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the effect her drug use had on her daughters, mother admitted,
“I’m sure I placed [the children] at risk when I was using.”
Mother contends this evidence should be disregarded. She
maintains her drug use had been “resolved to such an extent”
by the jurisdiction hearing that it “posed no risk of substantial or
imminent harm to the children.” She emphasizes she voluntarily
confronted her abuse. She had completed a residential drug
program and had tested negative for Oxycontin for four months.
She continued to participate in aftercare services and was
attending support meetings with her parents and a sponsor.
She also lived with the maternal grandparents who, mother
maintains, would “protect the children from any potential future
problems, should [she] lapse.” In view of her voluntary efforts
and stable family circumstances, mother argues it was “highly
speculative” for the court to find her past drug abuse established
a current risk of harm to the children. (See In re M.W. (2015)
238 Cal. App. 4th 1444, 1454 [more than mere speculation is
required to support a finding].)
There is no doubt that mother had made meaningful
progress toward overcoming her addiction, but we do not agree
this progress rendered the court’s jurisdictional finding highly
speculative. On the contrary, the evidence supported a
reasonable inference that mother might relapse into drug abuse,
and that the grandparents’ support alone was insufficient
to ensure the children’s safety. Our cases have consistently
recognized the threat of relapse is sufficient to find a substantial
risk of harm, even after lengthy periods of sobriety. (See In re
J.C. (2014) 233 Cal. App. 4th 1, 6–7 (J.C.) [no error in removing
infant from the father’s custody where, notwithstanding the
father’s plan to live with his parents and his seven months
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of sobriety, evidence showed he had “years-long struggles with
drug abuse” and he was at “risk of relapsing”]; In re Amber M.
(2002) 103 Cal. App. 4th 681, 686–687 [evidence supported denial
of custody, notwithstanding 372 days of sobriety, where the
mother had relapsed twice during the course of case, including
once after more than 300 days of sobriety].)
The record shows that a few months before mother entered
an inpatient treatment program she had attempted to “home
detox” under the maternal grandparents’ supervision. After
60 days of sobriety, mother was back to using two to three pills
a day. For two to three weeks she exhibited the familiar signs
of Oxycontin use—she became withdrawn and isolated herself
from the family, but the grandparents “never addressed or
asked anything” about her apparent relapse. The maternal
grandmother suggested they kept silent about mother’s drug
abuse because they anticipated social services would get involved
if word got out. Mother said her contentious interactions with
father had been a trigger for her drug use, and she acknowledged
their relationship remained tense. A friend at work had
introduced mother to Oxycontin, and mother was unsure whether
that friend would still be there when she returned to work in the
coming weeks. And, critically, although mother had been sober
for over four months at the time of the jurisdiction hearing, she
had been using Oxycontin for five years and her drug treatment
program reported she “present[ed] in the preparation stage
of change with regards to the disease concept and readiness
to change her behavior.” From this evidence the juvenile court
reasonably inferred mother’s recovery remained tenuous and the
danger of relapse persisted. Based on mother’s history of drug
abuse, including her admission that she cared for the girls while
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under the influence, the court reasonably found the potential
for relapse posed a substantial risk of harm to her daughters.
(See J.C., supra, 233 Cal.App.4th at pp. 6–7 [removal order
supported where, although father had good attendance and clean
tests in treatment program, his conduct before entering program,
including drug use leading to removal of his two older children,
suggested he was “prone to relapses”]; see also In re Cliffton B.
(2000) 81 Cal. App. 4th 415, 424 [“200 days was not enough to
reassure the juvenile court that the most recent relapse would be
[the father’s] last”]; In re Kimberly F. (1997) 56 Cal. App. 4th 519,
531, fn. 9 [“It is the nature of addiction that one must be ‘clean’
for a much longer period than 120 days to show real reform.”].)
Substantial evidence supported the jurisdictional finding.
The juvenile court did not err in asserting jurisdiction and
ordering informal supervision under section 360, subdivision (b).
(See Adam D., supra, 183 Cal.App.4th at p. 1262.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J. DHANIDINA, J.
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