Filed 6/12/13 C.A. v. Super. Ct. CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
C.A.,
Petitioner,
v.
THE SUPERIOR COURT OF
RIVERSIDE
COUNTY,
Respondent;
RIVERSIDE COUNTY DEPARTMENT OF
PUBLIC SOCIAL SERVICES,
Real Party in Interest.
E058284
(Super.Ct.No. RIJ114186)
OPINION
ORIGINAL
PROCEEDINGS; petition for extraordinary
writ. Jacqueline C. Jackson,
Judge. Petition denied.
David
A. Goldstein for Petitioner.
No
appearance for Respondent.
Pamela
J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel, for
Real Party in Interest.
The
mother of C.C. challenges the decision of the juvenile court to terminate
reunification services and set a selection and implementation hearing under
Welfare and Institutions Code section 366.26.
evidence to support the juvenile court’s finding that returning her daughter to
her custody would create a substantial risk of harm to the child. We disagree and so we deny the petition.
FACTUAL
AND PROCEDURAL BACKGROUND
In
January 2011, C.C. was born prematurely at 36 weeks gestation. The minor was in the neonatal intensive care
unit due to growth restrictions and lack of oxygen. Mother had received no prenatal care, smoked
throughout her pregnancy, and admitted to past methamphetamine use. She had a negative toxicology screen, but the
baby had not been tested at birth. The
hospital social worker contacted Child Protective Services (the department),
because she was concerned with the home environment and wanted an assessment
made before discharging the baby.
When
contacted by the social worker, mother explained she did not receive prenatal
care because she had not been approved for Medi-Cal and could not afford to pay
cash as the clinics demanded. Whenever
she required medical attention, she went to an emergency room. She did not learn of her pregnancy until she
went to Kaiser Hospital because of her high blood pressure. She was four months pregnant at the
time. She stopped buying cigarettes, but
admitted she smoked occasionally throughout the pregnancy.
Mother
disclosed to the social worker that in 2007 she had two children who were made
dependents. She failed to complete her
case plan, and the children are currently placed with their maternal
grandparents in Washington.
An
investigation was made of the parents’ apartment, and it was found that they
had made adequate provisions for baby, including a bassinet, car seat, high
chair, diapers, and formula. Mother
obtained Medi-Cal insurance and began receiving WIC program (the special
supplemental nutrition program for women, infants, and children) benefits. It was determined that the baby would not be
detained, but mother was warned about the dangers of smoking cigarettes around
her.
Prior
to the infant’s release from the hospital on February 17, 2011, the social
worker experienced some difficulties in contacting the parents. On February 22, mother telephoned the social
worker. Mother stated that she had
received the social worker’s message, but had no way of calling her. She denied the claims of the hospital social
worker that she had ever offered to allow her (mother) to use the office
phone.
Mother
reported that she had taken the child for her first doctor’s appointment
earlier that day. The child was in good
condition and had gained six ounces since her release from the hospital. She stated that the child was eating well and
had experienced no difficulty breathing when feeding. When asked what she would do if the child did
stop breathing, mother stated she would call 911 as her phone could be used for
emergency purposes.
On
March 2, 2011, the social worker and a public health nurse (PHN) visited mother
and the child at home. The child was
dressed in clean, seasonally appropriate clothes, appeared well nourished, and
was free of any marks or bruises. The
PHN concluded there were no developmental concerns, no obvious health or dental
issues, and no evidence of neglect.
Mother
failed to appear for an on-demand drug test on March 3, and a decision was made
by CPS to file an out-of-custody petition in order to monitor the family more
closely.
On
March 9, the juvenile court found that a prima facie showing had been made that
the child came within section 300, subdivision (b). The child remained in the parents’
custody. The court ordered that the
parents submit to random drug testing, and that the child be detained if the
parents did not comply or tested positive.
Both
parents tested positive for amphetamines, and the social worker physically
removed the child on March 21. The
social worker observed that the family’s apartment was cluttered, but otherwise
clean and appropriate. The child was
nicely dressed and appeared to be clean and well cared for. She had no marks or bruises to indicate any
abuse or neglect. The parents placed the
child in her car seat and provided the social worker with a diaper bag full of
provisions for her.
At
the May 17 jurisdictional hearing, the juvenile court found the allegations of
the petition to be true, and physical custody of the child was removed from the
parents. Mother was provided
reunification services. The court gave
authorization to the department to allow unmonitored visits, and, when
appropriate, to place the child with mother at her residential drug program.
Mother
began residing at the My Family Incorporated (MFI) inpatient substance abuse
program in August 2011, and the child was placed with her on family maintenance
on September 29.
On
November 21, 2011, the juvenile court ordered family maintenance services to
continue for mother.
Mother
successfully completed the inpatient drug program on November 13, 2011. She also completed programs in anger
management, domestic violence, parenting, and self esteem. She enrolled in an outpatient program with
Riverside Substance Abuse Program, and was residing with her child at a sober
living home.
Mother
complied with drug abuse testing and tested negative on January 25, April 3,
April 5, and April 15, 2012. She tested
positive for amphetamine on April 16, 2012.
She asserted she was not using and provided the social worker with
paperwork from her doctor stating that
he had prescribed her Sertraline, a drug that can affect test results. Two days later on April 18, mother submitted
to oral drug testing and the results were negative.
Mother
had been compliant and open to receiving services. The social worker also reported that she
maintained contact with her and made sufficient progress in completing her case
plan. The department noted mother’s long
history with drug use, and despite her successful completion of the inpatient
program, expressed concern that it took some time for her to enroll in an
outpatient program. It recommended,
therefore, that family maintenance be continued because it believed that
additional time was needed to monitor the child’s placement and mother’s
progress in light of her recent positive test.
On
June 19, 2012, the juvenile court continued family maintenance services,
setting the next status review hearing for December 19.
On
August 6, 2012, mother informed the social worker that she was leaving her
sober living home because it was relocating to Fontana, and she did not like
that city. Mother added that she was no
longer friends with her roommate who had been allowing her to use her cell
phone, but she provided the social worker with another cell phone number where
she said she could be reached. That was
the last contact the social worker had with mother until the latter appeared in
court on December 19, although the social worker had made numerous attempts to
contact her. In September, the juvenile
court issued a protective custody warrant.
The
juvenile court continued the hearing to January 23, 2013, so that the department
could update it about mother’s current circumstances. It ordered that mother submit to a hair
follicle test.
After
the conclusion of the hearing, mother informed the social worker about her
circumstances during her five-month disappearance. When she left the sober living home, she
resided with a friend in Ontario who told her that she did not want the
department coming around lest they be kicked out, because the landlord was not
aware that other people were living at the apartment. “Things just snowballed from there and after
time passed she was afraid to call [the social worker].†Although mother had stopped attending MFI in
June 2012, she stated she had been going to AA and presented the social worker
with attendance cards from July until December.
Mother
stated that she was currently staying with her sponsor, who was helping her
financially, since she had no income.
She explained that she believed that welfare benefits had stopped, and
that if she contacted her welfare worker, the department would detain the
baby. The social worker indicated that
she would contact the welfare worker so that mother could have her benefits
reinstated. The social worker
transported mother to complete an on-demand drug test. Thereafter, she took mother to her sponsor’s
home. There was a mattress in the living
room with mother’s belongings on it.
Mother said she and the child slept on the couch. The child appeared to be in good health and
spirits, and appeared free from abuse and neglect. She was dressed appropriately for the cold
weather. She appeared to be very well
bonded with her mother, and was meeting her developmental milestones. Mother indicated that she would enroll in the
MOM’s drug program.
The
results of the on-demand test of December 19, 2012, were received on January
16, 2013, and were positive for methamphetamine. As a consequence, at the continued section
364 hearing on January 23, the juvenile court granted the department’s oral
motion to detain the child. The
department then filed a section 387 petition to remove the child from mother’s
custody based on the allegation that the previous disposition had not been
effective in protecting the minor because of mother’s failure to maintain
sobriety.
On
January 25, 2013, mother had a positive hair follicle test for methamphetamine
and amphetamine.
Subsequently,
mother explained to the social worker that things started going downhill when
her housing became unstable. In January,
she left her sponsor’s home and moved in with the paternal grandmother. Mother denied any drug use and stated she did
not know the reason for the positive drug test, although she suggested that the
cause might have been the various prescription medications she was taking.
On
January 23, mother enrolled in the inpatient drug program at MFI and, in
addition, enrolled for random drug testing, parenting, and individual and group
therapy.
On
March 12, the juvenile court conducted a contested section 364 family
maintenance review hearing, as well as a contested jurisdictional dispositional
hearing pursuant to section 387.
Mother’s counsel offered no affirmative evidence regarding jurisdiction
and indicated that the court had everything before it to take jurisdiction. Rather, he argued that the court should
continue the matter because mother had tested clean six or seven times through
MFI since the positive hair follicle test in January, and she was about to
graduate from that program the next day.
The juvenile court
terminated further reunification services to mother, and set a selection and
implementation hearing. It commented
that “the light may have come on for mom,†but the court was concerned about
the “light staying on.†It added that
its job was protecting the child and the “cyclical process that mom goes
through, that means the baby has to walk through as well.â€
DISCUSSION
In
dependency cases, we do not require parents to be perfect. As stated in Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, “[t]he
question we face is not whether Mother has an unblemished drug testing record
or whether Mother is a perfect parent.
Rather, the question is whether substantial evidence supports the
juvenile court’s finding that returning the children to Mother’s custody would
create a substantial risk of physical or emotional detriment to the
children.†(Id. at p. 1327-1328; also see Rita
L. v. Superior Court (2005) 128 Cal.App.4th 495, 504 (Rita L.).)
Mother
contends that she has participated in and benefitted from services. She had a plan in place once she graduated
from her residential treatment program, which was the day after the contested
hearing. Although she had a relapse, she
got herself back on track and went through another residential treatment
program. She concludes, therefore, that
substantial evidence does not support the juvenile court’s finding that a
return to her custody would create a substantial risk of physical or emotional
detriment to the child. Unlike the
situation in Rita L., mother’s
relapse was not simply a one-time positive drug test of questionable
accuracy. Rather, she disappeared for
five months during which time her housing became unstable, she lost welfare
benefits, and she resorted to drug use.
What is significant is that this episode does not appear to be an
isolated one. Mother has shown that she
can maintain sobriety for only short periods of time before succumbing to
temptations. She has a pattern of
cyclical behavior, as the juvenile court noted.
During this disappearance, mother had to rely on the charity of others
to provide a home and food for herself and her child. Mother has certainly demonstrated that she
can properly care for her child when she is sober and has the resources to do
so. However, she has also shown that
when using drugs, she has neither the judgment nor skills necessary to obtain
those resources—food, shelter, and medical care—for herself or her child,
without supervision. There is a
potential for serious harm in this situation, and the fact that the minor has
not suffered actual harm heretofore does not detract from the substantial
nature of the risk. (Cf.
1127, 1136.)
Thus,
we must conclude that the juvenile court’s order is supported by substantial
evidence. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
The
petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
KING
J.
We concur:
RICHLI
Acting P. J.
MILLER
J.
Institutions Code unless otherwise stated.
