A.C. v. Superior Court

Filed 12/30/08 A.C. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Marsha Slough, Judge. Petition denied.

Margaret Hogenson for Petitioner.

No appearance for Respondent.

Ruth E. Stringer, County Counsel, and Ramona E. Verduzco and Kristina M. Robb, Deputy County Counsel, for Real Party in Interest.

Petitioner A.C. (Mother) is the mother of 17-month-old S.C. Mother filed this writ petition pursuant to California Rules of Court, rule 8.452(a) challenging an order setting a Welfare and Institutions Code section 366.26^[1]permanency planning hearing as to the child. Mother contends (1) the juvenile court erred in finding that the child was at a substantial risk of danger due to her neglect and mental illness, and (2) the juvenile court erred in denying her services pursuant to section 361.5, subdivision (b)(10). For the reasons provided below, we reject Mothers challenge and deny her petition.

I

FACTUAL AND PROCEDURAL BACKGROUND

In July 2008, then one-year-old S.C. came to the attention of the San Bernardino County Department of Childrens Services (DCS) after it was discovered Mother left the child unsupervised in her apartment while she went to visit a neighbor, and the child fell off the bed, breaking her collar bone. Mother failed to seek medical care for the child or to even realize the child was injured until a child care provider noticed the child was not using her arms normally and insisted Mother seek medical care. During this time period, Mother abused alcohol and drugs, including cocaine, marijuana, and methamphetamine. She had tested positive for methamphetamine on July 15 and 30, 2008, and admitted to using the drug with her then 15-year-old daughter J.C. Mother had a long history of abusing drugs, beginning at the age of 10.

J.C. confirmed that Mother had placed S.C. on a bed for a nap and went to visit the apartment manager. Mother denied leaving S.C. alone in the apartment. Mother claimed that she had asked her Inland Regional Center (IRC) worker to drive her to the doctor to seek medical help for S.C., but when the IRC worker was unable to, Mother had failed to seek the assistance from DCS, the family friend who had cared for the child, or the ADS Perinatal Substance Abuse Treatment (Perinatal clinic) staff who provided child care for Mother.

On August 6, 2008, a petition was filed on behalf of S.C. pursuant to section 300, subdivisions (b) (failure to protect). Specifically, the petition alleged that Mother had left the child unattended; Mother had failed to seek medical care for the child; Mother suffered from serious mental health problems (bipolar disorder, schizophrenia, and mental retardation); Mother had a long history of abusing drugs; and Mother had been hospitalized for suicidal ideation from July 31 to August 5, 2008. S.C. was formally detained the following day and placed with a nonrelated extended family member.

In addition to the above allegations, Mother had a long-standing history with DCS concerning her older daughter J.C. From November 1992 to July 2008, Mother had 14 referrals for caretaker absence, general neglect, sexual abuse, severe neglect, and caretaker incapacity, four of which were found to be substantiated. Mother had also been offered reunification services in October 2003 and January 2005 and family maintenance services in March 2008. Specifically, J.C. was removed from Mothers custody on September 5, 2003, due to Mothers substance abuse and poor supervision, which resulted in J.C. being molested. Mother was offered reunification services. However, due to her drug use, Mother failed to complete her case plan or reunify with J.C., and her services as to J.C. were terminated on November 11, 2004. Legal guardianship was established for J.C. in January 2005, but the guardianship was later terminated in November 2006 at the guardians request. J.C. was then placed into foster care but had adjusted poorly, and eventually in March 2008, J.C. was placed with Mother and offered wrap-around services. About four months later, on July 16, 2008, J.C. was again removed from her mothers care when Mother admitted to using methamphetamine and marijuana with J.C., and Mother had voluntarily placed S.C. with a family friend. It was also discovered that Mother had failed to protect J.C. from having a sexual relationship with an adult male in exchange for drugs.

DCS had previously provided Mother with housing, food, transportation, substance abuse treatment, a car seat, parenting classes, and crisis intervention. She had also received wrap-around services several times per week. In addition, once Mother had relapsed, she was referred to the Perinatal clinic, where she received almost daily crisis counseling and risk management services. Mother essentially had numerous services available to her in an effort to resolve her ongoing substance abuse and mental health issues. Nonetheless, Mother either failed to take advantage of those services or benefit from them without being held by the hand to do so by DCS and other agencies. Mother had continued to blame her relapse and substance abuse problems primarily on her older daughter. Mother had spent all of her discretionary funds on drugs, resulting in no money for food, clothing, or laundry. In fact, Mother had admitted to almost constant drug use from June 2008 to August 28, 2008, often selling off possessions to pay for her drug habit.

After S.C.s detention, Mother had two psychiatric hospitalizations, on July 31 and August 18, 2008, for suicidal ideations. Mother also suffered from Hepatitis B and C and was being treated for bipolar disorder and schizophrenia. She had admitted to not taking her prescribed medications, including her psychotropic medications. The social worker opined that all of Mothers actions placed S.C. at a risk of being harmed, and that it was not in S.C.s best interest to reunify with Mother.

The contested jurisdictional hearing was held on October 6, 2008. No witnesses were called, and the parties argued their positions based upon the reports submitted by DCS. Mother was only willing to admit the substance abuse allegation. The court found all the allegations in the section 300 petition true and declared S.C. a dependent of the court.

The contested dispositional hearing was held on October 7, 2008. The records in J.C.s case were judicially noticed and admitted into evidence. Dr. Edward Pflaumer (an expert on behalf of Mother), Mother, and the social worker testified at that hearing. Dr. Pflaumer essentially testified that Mother was in need of independent living skills training, mental health services, and substance abuse services. However, the doctor admitted that he did not know that Mother had been involved in past services at IRC or that Mother had completed a prior substance abuse program. He acknowledged that when a person such as Mother has completed more than one substance abuse program and then relapses, the probability of another relapse is higher than a person who has never had treatment.

Mother admitted that she had been receiving services through IRC since 2004, which consisted of transportation, financial services, and referrals to vocational and mental health counseling. She had also acknowledged that she had completed three drug treatment programs and one parenting program. She further confirmed that she began using drugs prior to her daughters removal and that she was residing at a board and care facility provided by IRC. Mother requested that she be provided with services to reunify with S.C., claiming she had learned from the many mistakes she had made. She denied current drug use but confirmed that she was not currently in a drug treatment program.

The social worker testified about J.C.s case and the similarities she saw in S.C.s case and explained that Mother had failed to remain sober despite completing at least three long-term substance abuse programs. The social worker in fact explained that Mother had relapsed with very little effort on her part to avoid doing so after each program, despite the availability of 24-hour assistance. The social worker further explained that Mother had parented S.C. with a lot of assistance from people, including occupational therapist, a public health nurse, a mentor through wrap-around services, and J.C. The social worker opined that it would not be in S.C.s best interest to provide Mother with reunification services in light of Mothers long-term substance abuse problems and repeated relapses.

Following argument from counsel, the juvenile court denied reunification services to Mother, noting it was very concerned that Mother not only had relapsed despite completing three drug treatment programs, but did so with her 15-year-old daughter, and was unable to benefit from past services or have the capacity to benefit from future services. The court found that Mothers behavior posed a substantial risk to S.C. and formally removed her from Mothers care. The matter was set for a section 366.26 hearing, and Mother was advised of her writ rights. This appeal followed.

II

DISCUSSION

A. Substantial Risk of Detriment Findings

Mother contends the juvenile court erred in finding substantial risk of detriment as there was insufficient evidence to show S.C. was left alone in the apartment (allegation b-1); (2) there was no evidence to show that failing to seek medical care for S.C. posed a substantial risk as S.C.s caretaker, registered nurse, failed to identify a need for medical treatment (allegation b-2); and (3) Mothers mental health problems only interfered with her ability to parent when not taking her medication (allegation b-3).

The Legislature has provided for juvenile court jurisdiction over dependent children. (See 300 et seq.) The primary goals of the dependency statutes are (1) To protect the child [citations]; (2) to preserve the family and safeguard the parents fundamental right to raise their child, as long as these can be accomplished with safety to the child [citations]; and (3) to provide a stable, permanent home for the child in a timely manner. [Citations.] (In re Santos Y. (2001) 92 Cal.App.4th 1274, 1317.) In the context of juvenile dependency, weighing the best interests of the dependent child is always the courts paramount concern. [Citation.] (In re Christopher I. (2003) 106 Cal.App.4th 533, 550.)

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence â€‘‑ that is, evidence which is reasonable, credible and of solid value â€‘‑ to support the conclusion of the trier of fact. [Citations.] In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. [Citations.] The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. [Citation.] (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) In short, [w]e have no power to judge the effect or value of the evidence, to weigh the evidence [or] to consider the credibility of witnesses . . . . [Citation.] (In re Mark L. (2001) 94 Cal.App.4th 573, 581.)

As pertains here, section 300, subdivision (b), authorizes dependency jurisdiction 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 childs parents] failure or inability . . . to adequately supervise or protect the child, or the willful or negligent failure of the childs parent . . . by the inability of the parent . . . to provide regular care for the child due to the parents . . . mental illness, developmental disability, or substance abuse. The facts necessary to show neglect within the meaning of subdivision (b) are (1) a parents neglectful conduct; (2) causation; and (3) serious physical harm or illness to the child or a substantial risk of such harm or illness. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) 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. (Id. at p. 823.)

To determine a substantial risk of serious physical harm, evidence of a parents past conduct may be probative of current conditions. However, the pertinent inquiry under section 300 is whether circumstances atthe time of the hearing subject the minor to the defined risk of harm. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) This inquiry is pertinent because a child shall continue to be a dependent child . . . only so long as is necessary to protect the child from risk of suffering serious physical harm or illness. ( 300, subd. (b).)

The courts decision to take jurisdiction was supported by the evidence, which we have summarized above. There was ample evidence of Mothers neglect in her failure to adequately supervise S.C. and protect her, resulting in her fall from the bed and a broken collar bone. Though Mother disputed her teenage daughters report that Mother was not present in the apartment when S.C. fell, it was within the juvenile courts purview to find J.C.s version of events more credible than Mothers, as well as the social workers report in that regard. Moreover, Mother admitted placing S.C. on the bed and admitted she was not in the room when S.C. fell. The fact remains that it was neglectful for her to leave then one-year-old S.C. unattended on a bed.

The evidence also demonstrated that after S.C.s fall, Mother failed to seek medical care. Though Mother made one attempt by asking her IRC worker to drive her and S.C. to a doctor and an IRC staff reported that it was often difficult to detect a broken collar bone on a preverbal baby when one does not know the baby has fallen, Mother failed to make any further attempts to seek medical care when she knew S.C. had fallen off the bed. It appears that Mother failed to even notice S.C.s pain or injury.

The evidence also showed that Mother suffered from serious mental health issues including mild mental retardation, bipolar disorder, and schizophrenia and that she had admitted to failing to take her medication. Due to these conditions, Mother was only able to parent when she received a great amount of support from service providers who were available to her 24 hours a day. Despite receiving these services, Mother was unable to learn the skills and generalize them from one situation to another.

Regardless, there was overwhelming evidence to show that Mother was abusing drugs during the time she was caring for S.C. Mother had admitted to almost constant drug use from June to August 2008, including methamphetamine, cocaine, marijuana, and alcohol. In addition, she had tested positive for methamphetamine use and had admitted to abusing methamphetamine and marijuana with her teenage daughter. There was more than substantial evidence to show that Mother had a long history of abusing drugs, beginning at the age of 10, and relapsing even after completing three drug treatment programs. In fact, it appears that S.C. came to the attention of DCS after her older sister was redetained after Mother and J.C. both admitted to using drugs together.

The court properly found that the child came within the jurisdiction of the court pursuant to section 300, subdivision (b). At the time of the jurisdictional hearing, Mother did not offer any evidence to the contrary. The record wholly demonstrates that there was a strong likelihood that S.C. did or would suffer serious physical harm or illness as a result of Mothers neglect, mental health issues, and/or substance abuse. This case did not involve a single incident of neglect or a single lapse in parental judgment; where there was no reason to believe it would ever reoccur. It appears that this proceeding began as a result of Mothers substance abuse, which placed the minor at risk of suffering serious physical harm. The evidence strongly supported the courts finding under section 300, subdivision (b).

B. Denial of Reunification Services

Mother also contends that the juvenile court erred in denying her reunification services pursuant to section 361.5, subdivision (b)(10). We disagree.

Subdivision (b) of section 361.5 sets forth a number of circumstances in which reunification services may be bypassed altogether. These bypass provisions represent the Legislature's recognition that it may be fruitless to provide reunification services under certain circumstances. [Citation.] (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597.) Specifically, [r]eunification services need not be provided to a parent or guardian . . . when the court finds, by clear and convincing evidence, any of the following: [] . . . [] (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 . . . and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian. ( 361.5, subd. (b).)

Here, the record clearly shows that Mother had been unable to reunify with S.C.s half sister and that Mother had been offered numerous services in the past to overcome her issues, primarily her substance abuse problems. Mother had been abusing drugs since age 10 with repeated relapses. She came to the attention of DCS in 2003 as a result of her substance abuse and sexual abuse perpetrated upon J.C. Mother had failed to reunify with J.C., and J.C. was placed in a guardianship. The record shows that Mother had completed a total of three drug treatment programs, the most recent one in 2007. She was sober for almost two years and had relapsed when the guardianship was terminated and J.C. was placed back in her care in March 2008. Despite completing the treatment programs and having a second chance at reunifying with J.C., Mother chose to use methamphetamine with J.C. in about June 2008 and had failed to protect her from a sexual relationship with an adult in exchange for drugs. Therefore, J.C. was again removed from Mothers care, and Mother had voluntarily placed S.C. in a friends home.

The evidence shows that Mother had failed to reunify with J.C. not just once, but twice. Instead of making a reasonable effort at treating the problem that led to the removal of the children from her home, Mothers drug abuse and poor decision making escalated. In August 2008, Mother went on a binge of cocaine, methamphetamine, and alcohol abuse for several days. She had tested positive for methamphetamine and also admitted to abusing drugs constantly from June to August 2008.

At the time of the dispositional hearing, Mother admitted that she was not in a drug treatment program, and even her own expert testified that the probability of another relapse was higher for Mother than a person who had never been in a treatment program. Though the record indicates that S.C. was bonded to Mother, the fact remains that there was no evidence showing reunification services would be in S.C.s best interest. Mothers arguments are unpersuasive. The section 300 petition alleged that Mother had a history of substance abuse and there was no evidence to suggest that Mother had treated this issue. Furthermore, there was no indication that Mother would provide an adequate or safe home for the child. In sum, there was sufficient evidence to support the courts denial of reunification services.

III

DISPOSITION

The petition for extraordinary writ is DENIED.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

McKINSTER

J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] All future statutory references are to the Welfare and Institutions Code unless otherwise stated.