In re Alissa G.

Filed 5/14/08 In re Alissa G. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

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

Sharon S. Rollo for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.

_________________________

Suzette G. (mother) appeals a finding of dependency with respect to her two children, 16-year-old Alissa G. and 13-year-old Jonathon G. Mother contends the evidence presented at the adjudication did not show the children currently were at risk of harm within the meaning of Welfare and Institutions Code section 300, subdivision (b),[1] and the juvenile court abused its discretion in failing to order informal supervision of the children under section 301. We affirm.

BACKGROUND

1. Mothers arrest.

On June 13, 2007, the Operation Safe Streets Division of the Los Angeles County Sheriffs Department executed a search warrant at multiple locations including the home of Vanessa R., a known associate of a criminal street gang. The warrant was issued in connection with an assault with a deadly weapon charge. The deputies believed Eugene T. and another of the suspects in the assault case were residing with Vanessa R. The deputies found numerous adults and five minors in the two-bedroom apartment. The deputies notified the Department of Children and Family Services (DCFS) and social workers immediately investigated.

In one bedroom of the apartment, Vanessa R.s mother, April P., and two children ages 17 and 9 years, had been sleeping. In the other bedroom, Vanessa R., her four-year-old son Isaac, mother, Alissa G., mothers 17-year-old stepson Joseph R., and mothers cousin Monica H., had been sleeping. Deputies found a hypodermic needle loaded with methamphetamine on the floor of that bedroom. Monica H. stated she had the needle in her bra and, when the deputies entered, she threw it on the floor. Mother denied knowledge of Monicas drug use.

Mother told the childrens social worker (CSW) she had been staying at Vanessa R.s apartment with her daughter, Alissa G., and her stepson, Joseph R., for about three weeks. Mother told the CSW she was caring for Joseph R. because his father, Richard R., was in prison. Mother indicated her other child, Jonathan G., has resided with maternal grandmother for some time. Mother did not visit Jonathan G. because mother and maternal grandmother did not get along.

Eugene T., mothers friend and Joseph R.s uncle, was sleeping on a couch in the living room. The deputies found a small bag of methamphetamine under the couch. Eugene T. was arrested in connection with the assault and because he was a parolee at large.

The deputies found a box of rifle ammunition in the apartment, but no weapon.

In the bedroom occupied by mother, Alissa G., and Joseph R., the deputies found a black metal box containing more than one ounce of methamphetamine, a digital scale, plastic zip lock bags and $250. The detention report indicated Joseph R., a known street gang member, had a key to the box and he was arrested for drug sales. Joseph R. told the CSW he resided in Sacramento with his mother and grandmother and he was only visiting the residence.

The jurisdiction report indicated mother also had a key to the black metal box. Mother stated Joseph R. asked her to hold the key for him. Mother insisted she did not know the purpose of the key and did not know that Joseph R. had brought drugs into the apartment. Mother was taken into custody on narcotics charges but was released later that day. Further, mother now denied Joseph R. had been in her care at the time of the raid. Rather, Eugene T. and Joseph R. visited the apartment that day, their ride failed to appear and they unexpectedly had spent the night.

Vanessa R. denied knowledge of narcotics in the home but hesitantly admitted she was associated with a criminal street gang and was arrested for child endangerment. The jurisdiction report indicated Vanessa R. prohibited drugs in her apartment but admitted her friends come to her apartment while under the influence.

All of the minors present in the apartment denied knowledge of drugs or weapons.

2. DCFS investigation.

Jonathon G., who resided with maternal grandmother, denied any knowledge of mother having a drug history.

Maternal aunt, Elizabeth G., told the CSW the father of Alissa and Jonathan lived in Victorville. He paid child support but had not had contact with the family for several years after an incident of domestic violence in which he struck maternal aunt. Maternal aunt was uncomfortable with mothers husband, Richard R., because he was a violent person. The CSW learned Richard R. was in custody for a parole violation and was a known drug user. Mother denied involvement with drugs and reported that she has tested clean four times.

DCFS placed Alissa and Jonathan with maternal grandmother and recommended that mother be permitted to live in maternal grandmothers home after 10 clean drug tests.

3. The detention hearing.

At the detention hearing, mother told the juvenile court that she separated from Richard R. prior to his incarceration. She intended to file for dissolution of their marriage but lacked the money to do so. Counsel for DCFS indicated that, following a Team Decision Meeting, DCFS decided mother should not reside with maternal grandmother due to friction between mother and maternal aunt and maternal grandmother. Joseph R., mothers stepson, was arrested for drug sales and mother admitted at the time of the initial interview that Joseph R. had been in her care at the time of the raid.

Mothers counsel responded Joseph R. had not been in mothers care at the time of the raid. Rather, Joseph R. and his uncle, Eugene T., had visited the apartment, they were waiting for a ride that did not arrive and they unexpectedly had spent the night. Mother denied she had been present in the apartment earlier that day.

The juvenile court ordered the children placed with maternal grandmother. The juvenile court granted mother monitored visitation, ordered mother to drug test weekly and granted DCFS discretion to allow mother to reside in maternal grandmothers home.

4. The jurisdiction report.

The jurisdiction report filed July 31, 2007, indicated mother has a history of criminal street gang affiliation. Her husband, Richard R., and his son, Joseph R., are members of the same gang.

Jonathan G. has been residing with maternal grandmother for the past two years because mother lacked a stable residence. Mother had been living at various places with Alissa G., creating an unstable environment for the child.

Mother denied gang membership but admitted everyone she grew up with belongs to the gang. Mother currently is living with her aunt until she can return to maternal grandmothers home. Mother visits the children daily and has expressed a desire to reunify with them. Maternal grandmother reported the children would be safe with mother.

DCFS recommended the children remain with maternal grandmother until mother can demonstrate that she can protect the children from the risks presented by associating with gang members.

4. Adjudication and disposition.

At the adjudication hearing on October 17, 2007, DCFS agreed to strike three allegations of the petition. The parties argued the remaining two counts, which alleged mothers conduct in allowing Alissa G. to be exposed to the presence of methamphetamine, ammunition and a hypodermic needle in Vanessas apartment endangered the childs physical and emotional health and safety and placed her and her sibling, Jonathan G., at risk of physical harm and damage. One count was based on the presence of the hypodermic needle and the methamphetamine, the other count was based on the presence of the ammunition.

The juvenile court found both allegations true. The juvenile court ordered the children placed in mothers care on condition she reside with maternal grandmother, participate in drug testing and individual counseling, and attend gang and drug awareness programs.

DISCUSSION

1. The evidence supports the juvenile courts finding the children were at substantial risk of serious harm.

Mother contends her temporary presence in Vanessa R.s apartment at the time of the raid in June of 2007 did not demonstrate the required current risk of harm to the children at the time of the adjudication in October of 2007. (In re Rocco M. (1991) 1 Cal.App.4th 814, 823-824.)

Mother argues that, even if Alissa G. was at risk in June of 2007, she denied knowledge of the drugs and ammunition found in the apartment and, by the time of the adjudication, Alissa was living with maternal grandmother, doing well and attending school. Mother asserts Jonathan was never at substantial risk of harm because he has lived with maternal grandmother for the past two years and maternal grandmothers home was found to be suitable for both children after DCFS intervened. Mother notes she has fully complied with the case plan, she completed parenting class, she is participating in drug and gang awareness programs, she drug tests, she obtained full-time employment and there was no evidence that mother abused drugs. Mother concludes the juvenile court improperly sustained the petition based on a single incident that occurred months earlier in a temporary living situation. Mother claims only speculation supports the suggestion her neglect will reoccur. (In re David M. (2005) 134 Cal.App.4th 822, 831-832.)

We are not persuaded. Section 300, subdivision (b), authorizes the juvenile court to adjudge a child dependent if, as relevant here, it finds by a preponderance of the evidence that, at the time of the jurisdictional hearing, [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 his or her parent or guardian to adequately supervise or protect the child . . . . In re Rocco M. stated, [t]here must be some reason to believe the acts may continue in the future. [Citations.] (In re Rocco M., supra, 1 Cal.App.4th at p. 824; In re David M., supra, 134 Cal.App.4th at p. 829.) However, in making this determination, the juvenile court is not required to disregard the [parents] prior conduct.  [Citation.] [P]ast events can aid in a determination of present unfitness. (In re Troy D. (1989) 215 Cal.App.3d 889, 900.)

Here, mother admitted all of her childhood friends were criminal street gang members, her husband and his son were members of the same criminal street gang and mothers friend, Vanessa R., was an admitted associate of the gang. Further, based on the evidence recovered in Vanessa R.s apartment, the juvenile court reasonably could infer that mother exposed Alissa G. to a drug infested criminal street gang flop house featuring methamphetamine sales, criminal street gang members, parolees at large and rifle ammunition, all of which adds up to serious risk of harm to mothers children.

Even though Jonathon G. continuously has been in maternal grandmothers care, the juvenile court properly could sustain the allegations of the petition as to him based on mothers demonstrated inability to protect his sibling, Alissa, from substantial risk of serious harm. Absent dependency jurisdiction, mother would be free to remove Jonathon G. from maternal grandmothers care and expose him to the same criminal street gang environment to which she had exposed Alissa G. Thus, notwithstanding mothers compliance with the case plan in the post detention period, the juvenile court properly could find the evidence demonstrated a current risk of serious harm to both children.

The case on which mother places primary reliance, In re David M., supra, 134 Cal.App.4th 822, is distinguishable. In that case, the juvenile court relied on neglect of a sibling that occurred several years earlier and the mothers marijuana abuse to declare a child a ward of the court. David M. concluded this evidence was insufficient to warrant a finding of dependency. David M. noted there was no showing the parents drug abuse caused, or created a substantial risk of causing, serious harm to [the minor] and the record lack[ed] any evidence of a specific, defined risk of harm to the child. (Id. at p. 830.) Further, there was uncontradicted evidence indicating the child was healthy, well cared for, and loved, and that mother and father were raising him in a clean, tidy home. ( Ibid.)

In this case, the neglect of Alissa G. is recent and until mother has demonstrated appreciation for the risk involved in exposing teenaged children to a criminal street gang environment, Alissa and Jonathon G. remain at serious risk of harm.

2. The failure to order informal supervision was not an abuse of discretion.

Section 360, subdivision (b) provides: If 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 childs parent or guardian under the supervision of the social worker for a time period consistent with Section 301.

Section 301 permits the social agency, with the consent of the parents, to provide voluntary family maintenance services in lieu of filing a dependency petition.

Mother contends that, in the circumstances presented in this case, it was an abuse of discretion for the juvenile court not to order informal supervision pursuant to section 360, subdivision (b).

Mother has forfeited this issue by failing to request informal supervision under section 360, subdivision (b), in the juvenile court. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Instead, mother asked the juvenile court to place the children in her care on condition she live with maternal grandmother and attend numerous programs. Mother cannot now complain the juvenile court failed to do something mother did not request. (In re Cheryl E. (1984) 161 Cal.App.3d 587, 603.)

In any event, section 360, subdivision (b), merely permits a juvenile court to order informal supervision. The juvenile court committed no abuse of discretion in exercising jurisdiction over the children, rather than ordering informal services under section 360, subdivision (b).

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.