In re Corbin S.

In re Corbin S.

Filed 8/20/08 In re Corbin S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CORBIN S., A Person Coming Under the Juvenile Court Law.	B203467 (Los Angeles County Super. Ct. No. CK68932)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. HEATHER F., Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. D. Zeke Zeidler, Judge. Affirmed.

Anna L. Ollinger, under appointment by the Court of Appeal, for Appellant.

Raymond G. Fortner, County Counsel, James M. Owens, Assistant County Counsel, and Timothy M. OCrowley, Deputy County Counsel, for Respondent.

Appellant Heather F., mother of minor Corbin S., appeals from an order of the juvenile court sustaining a petition brought under Welfare and Institutions Code section 300 based on her history of failure to provide for Corbin, drug use and incarceration.^[1] She also appeals the courts dispositional order, which placed Corbin with his paternal grandmother. Appellant contends: (1) the juvenile court improperly considered certain evidence in making its jurisdictional finding, and (2) the remaining evidence was insufficient to support the allegations of the petition and render her ineligible for section 361.2 placement as a non-offending parent.^[2] We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Original Petition and Detention

On June 23, 2007, three-year-old Corbin was taken into protective custody by the Los Angeles Police Department following an incident in which his father, Nicholas S., was stabbed and taken to the hospital.^[3] A few days later, respondent Department of Child and Family Services (DCFS) filed a petition with the juvenile court under section 300. The petition alleged that appellant had failed to provide her child with the basic necessities of life.^[4] The detention report indicated that Corbin was found alone in a filthy and unsanitary motel room within reach of illicit drugs, while appellant could not be located.^[5]

Appellant was not present at the June 27 detention hearing, but appointed counsel appeared on her behalf and informed the court that appellant was residing in Arizona and wanted Corbin returned to her. Her counsel stated that appellant had been released in April from an Arizona prison after serving nine months for drug possession and was willing to do whatever programs are necessary. Counsel further explained that Corbin had gone to live with Nicholas when appellant was sent to prison. Nicholas and his counsel stated that Corbin had been sent to him by Arizonas Child Protective Services (CPS) due to appellants drug problem.^[6]

B. First Amended Petition

DCFS filed a first amended petition (FAP) on August 1, 2007. In addition to the original allegation of failing to provide for her child, the FAP alleged that appellant had a history of substance abuse and is a user of methamphetamines; had a criminal history of drug[-]related offenses including convictions for possession of drugs and drug paraphernalia and drug solicitation; had been incarcerated for these drug-related charges until April 2007; and that her substance abuse problems remain[ed] unresolved and render[ed] [her] incapable of providing regular care, protection and support for [Corbin]. It also alleged that she had received permanent placement services for Corbins half-brother Johnatan in Arizona due to illicit drug use.^[7]Finally, it alleged that her drug use endangered Corbins physical safety and emotional well-being, created a detrimental home environment, and placed the child at risk of physical and emotional harm and damage.

C. Jurisdiction/Disposition

1. Statements of Witnesses

The August 1, 2007 jurisdiction/disposition report contained statements made to the DCFS caseworker by appellant, Nicholas, appellants mother, and Johnatans paternal great grandmother.^[8]Appellant told the caseworker that she had been kind of rebellious as a child and was placed in a group home at age 13. She admitted using drugs as an escape from mental health problems including depression, schizophrenia, bipolar disorder, and post-traumatic stress disorder (resulting from sexual abuse by her stepfather). She admitted being arrested in November 2005 for [d]angerous [d]rug violation and solicitation, rearrested in August 2006 for violating probation, and released in April 2007. She said that the charge was a Class 6 Felony for possession of methamphetamines.^[9]

Nicholas stated that he and appellant met in Arizona and appellant became pregnant with Corbin. Following Corbins birth in December 2003, the two married and moved in together. Appellant began smoking marijuana and staying out all weekend. In November 2004, Nicholas moved to California, taking Corbin with him, because appellant believed she could not take care of Corbin or herself. From March 2005 to July 2005, Corbin was returned to live with appellant in Arizona. In July, Nicholas took Corbin back because Johnatans paternal great-grandmother had called and told him appellant was using drugs.

Appellant told the caseworker that she voluntarily sent Corbin away in July 2005 because she had fallen ill with a kidney infection and was bedridden. Concerning the allegation that her whereabouts were unknown at the time of the incident and hearing, appellant said that she had mailed several packages to Corbin and Father - both while in prison and upon her release - and provided receipts to prove it. She also said she had a job and was capable of taking care of Corbin. In response to the drug use allegations, appellant submitted a letter from Donna Brown, her employer and sponsor in a twelve-step sobriety program. The letter said that Brown had been appellants sponsor since April 2007 (when she was released from prison), that appellant attended meetings twice a week, and that appellant had been sober for ten months. In Browns opinion, appellant was working very hard on staying sober and had proven to be a very reliable, upstanding employee.

Appellants mother told the caseworker that appellant and Nicholas both smoked marijuana when they were living together. Appellant started using methamphetamine when she began her relationship with Johnatans father and got arrested on her first drug charges shortly after sending Corbin to live with Nicholas. After her release, she was sober for a brief period and then began using drugs again. Johnatans paternal great grandmother, Edith T., told the caseworker that she believed appellant was bipolar and was a methamphetamine user. Edith also stated that appellant had physically abused Johnatan in 2005.^[10]

2. Arizona Documents

Attached to the DCFS jurisdiction/disposition report were several documents originating in Arizona. The first was a report from Arizona CPS. The CPS report recommended severing appellants relationship with Corbins half-brother Johnatan, asserting that she was incarcerated in November 2006 (when the report was submitted) for charges including possession of drugs and drug paraphernalia and drug solicitation. According to the report, appellant had a history of instability in housing and employment, a history of methamphetamine use, and a history of mental illness. The report also recounted that appellant admitted using marijuana and methamphetamines as a teenager, but denied any drug use during her pregnancies.

Also attached to the DCFS report was a June 24, 2007 inmate detail printout from the Arizona Department of Corrections website. According to the printout, appellant had been incarcerated November 28, 2006 for a dangerous drug violation and solicitation, and released on a supervised basis on April 17, 2007. Finally, the DCFS report included a March 21, 2007 minute order of the Arizona Superior Court, terminating appellants parental rights over Johnatan on the ground of voluntary relinquishment.

3. Jurisdiction/Disposition Hearing

At the October 29, 2007 combined jurisdiction/disposition hearing, the juvenile court accepted the DCFS report into evidence, including all the attached documents. Counsel for appellant objected pursuant to section 355 to various portions of the report, including the Arizona CPS report, the Arizona minute order and the inmate detail printout. The court agreed that section 355 applied to the Arizona CPS report and ruled that the information contained within it would be considered only insofar as it was corroborated. The court concluded it could properly take judicial notice of the inmate detail printout and the Arizona minute order and accordingly, admitted those documents without limitation.

The court ultimately found all allegations concerning appellant to be true and declared jurisdiction over Corbin pursuant to section 300, subdivisions (b) (failure or inability to supervise or protect), (g) (failure to provide support or care), and (j) (abuse or neglect of sibling). The court placed Corbin with his paternal grandmother and ordered drug rehabilitation, parental education, individual counseling and a psychiatric evaluation for appellant. Appellant timely filed this appeal.

DISCUSSION

Appellant contends the juvenile court improperly relied upon information derived from the Arizona CPS report and improperly took judicial notice of the Arizona Department of Corrections inmate detail printout and the Arizona Superior Court minute order. She argues that the remaining evidence was insufficient to support the allegations of the petition and render her ineligible for section 361.2 placement as a non-offending parent. We conclude that sufficient competent evidence supported the juvenile courts findings and affirm its orders.

A. Arizona Documents

We first address appellants concerns that the Arizona documents incorporated into the DCFS jurisdiction/disposition report were improperly admitted and considered by the juvenile court. Ordinarily, the hearsay rule prohibits the admission of statements by persons not appearing in court, if offered for the truth of such statements. (Evid. Code, 1200 et. seq.) However, section 355, subdivision (b) sets out an exception for the admission of hearsay evidence in jurisdictional hearings: A social study [the jurisdiction/disposition report, in this case] prepared by the petitioning agency [DCFS], and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, to the extent allowed by subdivisions (c) and (d). Because the CPS report was attached to the jurisdiction/disposition report prepared by DCFS and formed the basis for many of the DCFS caseworkers conclusions, it was admissible, subject to the limitations of subdivisions (c) and (d).

Section 355, subdivision (c)(1) provides that where a party to a jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based.^[11] Raising the objection does not render the evidence inadmissible; [r]ather, the objection mean[s] that uncorroborated, the hearsay statements [can]not constitute substantial evidence and [can]not be used as the exclusive basis for finding jurisdiction under section 300. (In re B.D. (2007) 156 Cal.App.4th 975, 984-985.)

With respect to the portions of the CPS report detailing the charges that led to the detention of Johnatan in Arizona, the juvenile court recognized this constituted hearsay evidence to which no exception applied and was, therefore, not sufficient on its own to support the allegations of the petition.^[12] Accordingly, appellants contention that the court improperly admitted and considered the CPS report is mistaken.

With respect to the inmate detail printout from the Arizona Department of Corrections website, under Evidence Code section 452, subdivision (h), courts may properly take judicial notice of [f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Judicial notice may be taken of information obtained from the Internet that meets this standard. (Boghos v. Certain Underwriters at Lloyds of London (2005) 36 Cal.4th 495, 505-506, fn. 6; see Grimes v. Navigant Consulting, Inc. (N.D.Ill. 2002) 185 F.Supp.2d 906, 913 [taking judicial notice of stock prices reflected on a website under similar federal rule of evidence]; Cali v. East Coast Aviation Services, Ltd. (E.D.N.Y. 2001) 178 F.Supp.2d 276, 287, fn. 6 [taking judicial notice of documents from websites maintained by Pennsylvania state agencies and the Federal Aviation Administration under federal rule].) However, we need not resolve whether judicial notice of the information contained in this document was proper because the only information it revealed - that appellant was incarcerated for drug-related offenses from 2006 to 2007 - was established by the caseworkers interview with appellant herself.

For similar reasons, we need not resolve whether the court properly took judicial notice of the Arizona Superior Courts minute order. The only information it contained was that appellant had voluntarily relinquished Corbins half-brother Johnatan in March 2007. This information was not relevant to the jurisdictional allegations.

B. Sufficiency of the Evidence

We now turn to appellants argument that the evidence as properly considered by the juvenile court was insufficient to support its jurisdictional findings. In addressing this [question], we are constrained by familiar principles: 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. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379, quoting In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)

Here, the court sustained allegations against appellant that she had failed to provide Corbin with the basic necessities of life, that she had a history of substance abuse, that she had been incarcerated for drug offenses, and that she had not resolved her substance abuse problem. As a result, the court took jurisdiction over Corbin and, concluding that appellant was not fit to receive custody of the child, placed him with his paternal grandmother.

These findings were supported by the evidence. Appellant admitted to the DCFS caseworker that she had used drugs in the past and had been incarcerated for drug offenses in 2005 and from 2006 until April 2007, shortly before Corbin was detained. Her statements corroborated the information provided by the Arizona CPS report, Johnatans paternal great-grandmother, and appellants own mother that appellant was a habitual drug user. Nicholas reported that appellant had used drugs after Corbins birth, prompting her to voluntarily send Corbin to live with Nicholas in California because she could not take care of him. When Nicholas was attacked, he was living with Corbin in an unsanitary motel room paid for with vouchers, after spending the night in a homeless shelter due to his inability to afford rent. There was no evidence of financial assistance from appellant during this time of need. The record thus provides evidence of appellants failure to provide the basic necessities for her child, and of her recurring drug use and multiple incarcerations that rendered her unable to provide for his care.

Appellant provided some evidence to refute the FAPs allegations, such as the letter from her sponsor in a rehabilitation program. However, the letter was a two-edged sword as it constituted evidence that appellant herself recognized the existence of a substance abuse problem. Moreover, assigning weight to this evidence was a task for the juvenile court, which clearly found it unconvincing. The court was not bound to consider appellant rehabilitated merely because she had successfully attended a substance program for a period of months. A showing of participation in a rehabilitation program is not enough to overcome a finding of danger to a child demonstrated by a lengthy history of neglect and drug use. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [given parents history of drug use, court properly refused to grant section 388 petition notwithstanding parents 3-month old effort at rehabilitation].)^[13] Drawing all reasonable inferences from that evidence, each of the allegations set forth in the FAP was properly sustained.

DISPOSITION

The courts order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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^[1] Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

^[2] Section 361.2, subdivision (a) provides that a court ordering removal of a child must place that child with a non-custodial parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.

^[3] Nicholas is not a party to this appeal.

^[4] The allegations pertaining to Nicholas are not at issue. Therefore, we do not discuss them.

^[5] Nicholas later explained that he and Corbin had left their prior home because he could not afford the rent. After one night in a homeless shelter, they were given vouchers to stay at the motel.

^[6] CPS in Arizona is the equivalent of DCFS.

^[7] Corbins half-brothers name is spelled Jonathan in some areas of the record. The report from Arizona CPS, though, consistently refers to him as Johnatan.

^[8] The jurisdiction/disposition report also contained statements from Corbins paternal great-grandmother and paternal grandmother. However, nothing in their statements to the caseworker was pertinent to the jurisdictional allegations against appellant.

^[9] In a letter to the court submitted prior to the jurisdiction/disposition hearing, appellants counsel raised objections based on hearsay and section 355 to portions of the caseworkers report, including statements of appellant, her mother, Johnatans paternal great-grandmother, and Corbins paternal great-grandmother and paternal grandmother. She did not object to Nicholass statements. The court sustained all of counsels objections without explanation other than a brief discussion of the Arizona CPS report, which was attached to the DCFS report. Neither the hearsay rule nor section 355 provides a basis for excluding statements made by appellant herself.

^[10] Edith was the originator of the report to CPS that led to appellants loss of custody of Johnatan and is the current custodian of Johnatan.

^[11] Under the statute, there are four instances where hearsay evidence contained in a social study or caseworker report may be used to support jurisdiction without corroboration: (1) where a recognized exception to the hearsay rule applies ( 355, subd. (c)(1)(A)); (2) where the hearsay declarant is a minor under the age of 12 and the subject of the jurisdictional hearing (id., subd. (c)(1)(B); (3) where the hearsay declarant is a peace officer or a social worker licensed pursuant to the Business and Professions Code (id., subd. (c)(1)(C)) or (4) where the hearsay declarant is available for cross-examination (id., subd. (c)(1)(D)). Neither party contends that any of these exceptions apply to the hearsay statements to which appellant raised objections. As we have said, however, a hearsay exception applies to the admissions of appellant.

^[12] As explained in In re B.D., supra, the corroboration requirement of section 355 is analogous to the rule in criminal law requiring independent corroborative proof of accomplice testimony. (156 Cal.App.4th at p. 984.) In other words, corroborative evidence is sufficient even though it is slight and entitled, when standing by itself, to but little consideration and does not establish the precise facts testified to by the [hearsay] declaration] as long as it tends to connect the accused with the commission of the offense. (Ibid.)

^[13] Because we conclude the juvenile court properly found that appellants actions endangered Corbins physical and emotional safety, appellants argument that she should have been considered for placement pursuant to section 361.2 as a non-custodial parent is meritless.