In re Alyssa J.
Filed 3/20/13 In re Alyssa J. CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re ALYSSA J. et al., a
Person Coming Under the Juvenile Court Law.
B241666
(Los Angeles
County
Super. Ct.
No. CK90304)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MOLLIE W.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County, Donna Levin, Juvenile Court Referee. Affirmed.
Maureen L.
Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, Stephen D.
Watson, Senior Associate County Counsel, for Plaintiff and Respondent.
___________________
>
Mollie W.’s four daughters, ranging
in age from four to 15 years old, were declared dependent children of the
juvenile court in February 2012 based on sustained allegations that Mollie and
the father of the three youngest children had a history of engaging in violent altercations
and that Mollie had a history of alcohol abuse and was a current abuser of
alcohol. They were released to Mollie
with an order for family maintenance services.
On May 23, 2012, after Mollie missed another alcohol test, the court
sustained a petition filed by the Los
Angeles County Department of Children and Family Services (Department)
under Welfare and Institutions Code section 387,
removed the children from Mollie’s custody and ordered them suitably
placed. Mollie appeals, contending there
was insufficient evidence the children’s previous placement (that is, remaining
in Mollie’s care and custody) was no longer effective in protecting them. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Department received a referral
in September 26, 2011
alleging Mollie’s four children were victims of emotional abuse by L.W., the
father of the three youngest girls,
name="_ftnref2" title="">[2] who had been arrested for spousal abuse two
days earlier. The reported stated the
abuse was ongoing: The couple had an
extensive history of domestic violence, beginning in 2005. Mollie had obtained several restraining
orders against L.W. The most recent
episode of violence occurred when Mollie served a new temporary restraining
order on L.W. Mollie told the
Department’s social worker she was now serious about enforcing the restraining
orders and intended to testify against L.W.
On October 7, 2011 the Department detained the children from
L.W., but allowed them to remain in Mollie’s care. Mollie was informed the children would be
removed from her custody if she permitted L.W. to violate the current
restraining order. The initial
dependency petition alleged the children were at risk of serious physical harm
because of Mollie’s and L.W.’s history
of engaging in violent altercations and Mollie’s failure to take action to
protect the children. (§ 300,
subds. (a), (b).) In addition to
recounting the couple’s prior history of domestic violence, the detention
report summarized L.W.’s extensive criminal history and Mollie’s ongoing
alcohol abuse, including several arrests for driving under the influence of
alcohol and driving with a suspended license.
On October 13, 2011 the juvenile court found a prima facie
case that the children were described by section 300 and ordered them detained
from L.W. and released to Mollie. The
court ordered family maintenance services for Mollie. L.W. was permitted monitored visitation only,
and the court issued a temporary restraining order against him. At a subsequent hearing the court ordered the
children to remain with Mollie on condition she submit to weekly alcohol
testing and authorized unannounced home visits.
The court also ordered Mollie and the children be provided with family
preservation services.
The Department filed an amended
section 300 petition on November 9, 2011, adding allegations relating to
Mollie’s history of alcohol abuse.
Although the Department had received information that Mollie drank heavily
and on a daily basis, in an interview she insisted she only drank wine socially
(“maybe one or two†glasses) when she went out with friends.
driving under the influence of alcohol in October 2011
offense some years earlier.
name="_ftnref5" title="">[5] Mollie failed to show up for an
on-demand alcohol test on November 1, 2011 and
initially lied to the social worker about completing a test on November
3, 2011. Between November 1, 2011 and
January 27, 2012 Mollie failed to show up for four alcohol tests, tested
negatively on three occasions and had diluted results on six occasions,
indicating she had been trying to clean her system. She tested positive for alcohol on February
1, 2012.
On February 2, 2012 the court
sustained the section 300, subdivision (b), allegations in the first
amended petition (failure to protect), as further amended at the hearing, and
dismissed the subdivision (a) allegations (serious physical harm). At the disposition hearing on February 7,
2012, the court discussed Mollie’s recent positive test for alcohol and
cautioned it was “running out of patience at this point. So, I will go forward on the disposition, but
the mother has to take this really seriously and get into a program and stay in
a program. Really, really comply with
that program.†The children were
declared dependents of the court and released to Mollie’s custody. Mollie was ordered to complete an alcohol
program with random on-demand weekly alcohol testing and participate in
individual counseling. The court again
authorized unannounced home visits.
Mollie and L.W. were ordered to participate in conjoint counseling if
they planned to get back together.
Following the disposition hearing
the youngest girls’ paternal grandmother, Sandra W., reported to the Department
that Mollie had “called me every day drunk†during a period when two of her
granddaughters had been staying with her.
At about the same time the Department was notified that Mollie had
failed to show up for an alcohol test.
The Department detained the children from Mollie, placed them with their
respective paternal grandmothers and, on April 13, 2012, filed a
section 387 supplemental petition alleging the previous disposition had
not been effective in the protection of the children based on Mollie’s failure
to participate in weekly random alcohol testing.
At the detention hearing the court
found a prima facie case to detain
the children, explaining its previous order had stated there were to be no
missed tests. In interviews with the
Department for its jurisdiction/disposition report, both paternal grandmothers
said the children had described their mother as frequently drunk; and a
paternal cousin indicated Mollie had been drinking for years and the problem
was only getting worse. The cousin also
said Mollie had arranged for the children to stay with Sandra W., not so she
could recuperate from the flu, but to go to San Diego to party. For her part, Mollie insisted the missed test
was the result of an honest mistake.
On May 7, 2012 Mollie was unable to
complete her alcohol test because she could not provide any urine. Sandra W. reported that the following week
Mollie had arrived at her home intoxicated to visit with the children.
The court conducted the section 387
jurisdiction hearing on May 23, 2012.
The court noted Mollie’s missed test was considered a positive
test. A social worker testified he had smelled
alcohol on Mollie during the court session on February 2, 2012. Mollie again insisted she only drank
socially, “when I go out with my girlfriends.â€
When asked if Alcoholics Anonymous permitted such social drinking,
Mollie responded, “No, but they do say that it’s not anything that’s going to
happen overnight. It is a process.â€
The children’s attorney
acknowledged the girls, although happy with the family members they were living
with, would prefer to be with their mother.
But she urged the court to require Mollie to complete an effective alcohol
program and added, “[A]t this time I do not believe that it would be safe for
the children, given the evidence, to be with the mom until she enters and
starts participating in a program.â€
Counsel commended the Department for trying to work with Mollie, but
said she saw “a lot of minimization here.â€
The court agreed, “I think you have been minimizing [your
alcoholism]. I think that to go to AA
and still say, ‘I’m a social drinker,’ I think you have a problem. You have to face up to that
problem. . . . You need
to go to a real alcohol rehabilitation program.â€
The court sustained the section 387
petition, found the previous disposition had not been effective in the
protection of the children, terminated the prior order releasing them to
Mollie, removed them from Mollie’s care and custody and ordered the children
suitably placed by the Department. The
court also ordered family reunification services, directing Mollie to complete
a parenting program, a domestic violence program for victims, a full alcohol program
with weekly random and on-demand testing and an aftercare program.
DISCUSSION
1. Section 387
A supplemental petition under
section 387 is required when the Department seeks to change or modify an
earlier disposition by removing a child from the physical custody of a
parent. (In re A.O. (2010) 185 Cal.App.4th 103, 109; see In re Jonique W. (1994)
26 Cal.App.4th 685, 690.)
name="_ftnref7" title="">[7] “The ‘jurisdictional fact’ necessary to
modify a previous placement is that the previous disposition has not been
effective in the . . . protection of the [child].†(In re Joel H. (1993) 19 Cal.App.4th
1185, 1200.) “The law does not require
that a fact necessary to establish jurisdiction under section 300 be
established to warrant a change in placement. . . . [Fn. omitted.] [¶]
. . . [R]egardless of whether there [is] insufficient
evidence of physical or emotional abuse, the critical appellate issue is
whether there [is] substantial evidence to support the court’s finding that the
previous disposition was not effective in protecting [the child].†(Ibid.)
Under California Rules of Court,
rule 5.565(e)(1), a hearing on a supplemental petition is potentially a
two-phase proceeding. “In the first
phase of a section 387 proceeding, the court must follow the procedures
relating to a jurisdictional hearing on a section 300 petition
. . . . At the conclusion
of this so-called ‘jurisdictional phase’ of the section 387 hearing [citation],
the juvenile court is required to make findings whether: (1) the factual allegations of the
true; and (2) the allegation that the previous disposition has not been
effective in protecting the child is, or is not, true. (Rule [5.565(e)(1)].) If both allegations are found to be true, a
separate ‘dispositional’ hearing must be conducted under the procedures
applicable to the original disposition hearing . . . .†(In re
Jonique W., supra,
26 Cal.App.4th at p. 691.)
We review an order sustaining a
section 387 petition for substantial evidence.
(In re A.O., supra, 185
Cal.App.4th at p. 109; In re A.O.
(2004) 120 Cal.App.4th 1054, 1061.)
name="_ftnref8" title="">[8] As the party challenging the juvenile court’s
findings and order, Mollie “has the burden of showing that there is no evidence
of a sufficiently substantial nature to support the finding or order.†(In re
Maria R. (2010) 185 Cal.App.4th 48, 57.)
2.
Substantial Evidence Supports the
Order Sustaining the Section 387 Petition
Mollie concedes, as alleged in the
section 387 supplemental petition, on March 26, 2012 she failed to participate
in a juvenile-court-ordered weekly random alcohol test. Her sole contention on appeal is that one
missed alcohol test is an insufficient basis to remove her children from her
home. Indeed, she notes she had actually
tested positive for alcohol on February 1, 2012, less than a week before the
original disposition hearing. Yet,
because she was otherwise a good mother, she asserts, the Department
recommended and the court ordered that the children remain in her care and
custody at that time.
Mollie’s argument before this
court, like so much of her presentation in the juvenile court, fails to
acknowledge either her serious alcohol problem or her repeated failure to take
appropriate steps to address it. When it
sustained the first amended petition, the juvenile court found Mollie’s
unabated alcohol abuse presented a substantial risk of harm to the children—a
finding Mollie has never challenged. The
court allowed the children to remain in her care conditioned on her full
participation in an alcohol program with random on-demand weekly alcohol
testing. Mollie breached those
conditions: Substantial evidence before
the court at the hearing on the section 387 petition showed, in addition to the
failure to test as alleged in the petition, Mollie continued to drink to excess
and to minimize the significance of her alcoholism. The court’s conclusion the previous order
placing the children in her custody was no longer effective for their
protection is amply supported by the record.
DISPOSITION
The order of the juvenile court is
affirmed.
PERLUSS,
P. J.
We
concur:
WOODS,
J.
ZELON,
J.
references are to the Welfare and Institutions Code unless otherwise indicated.
biological father of the oldest child, Alyssa J., is deceased.
