In re A.N.
Filed 9/16/13 In re A.N. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
FIFTH
APPELLATE DISTRICT
In re A.N., a Person Coming
Under the Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN
SERVICES,
Plaintiff and
Respondent,
v.
SAMANTHA N.,
Defendant and Appellant.
F066388
(Super.
Ct. No. JD129149)
THE COURT
name="_ftnref1" title="">*
APPEAL
from a judgment of the Superior Court
of
Conness A.
Thompson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Theresa A.
Goldner, County Counsel,
and Mark L. Nations, Chief Deputy County Counsel, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
Samantha N.
(mother) appeals from the juvenile court’s dispositional findings on a Welfare
and Institutions Code section 300
name="_ftnref2" title="">[1] petition.
Specifically, she alleges the juvenile court’s findings that she made
minimal progress in addressing causes that led to her daughter A.N.’s
out-of-home placement are inaccurate.
Mother also contends there is insufficient evidence to support the
juvenile court’s finding that A. faced a substantial risk of harm if she were
returned to mother’s care. Lastly,
mother argues the juvenile court’s determination has led to infringement of her
fundamental right to parent and has
compromised her ability to bond with her daughter. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In early
June 2012, the Kern County Department of Human Services (the Department)
received a referral that mother had given birth to A.; A.’s meconium tested
positive for marijuana. Mother also
tested positive for marijuana. She
admitted using marijuana during her pregnancy to treat depression. Mother also admitted to auditory and visual
hallucinations. Moreover, there were
concerns regarding the condition of mother’s home.
While A.
remained hospitalized in the neonatal intensive care unit as a result of her
premature birth, the Department conducted home visits. Mother’s residence was deemed to be unfit by
the Department. She was advised to make
a number of repairs, to stop smoking inside the home, and to maintain the
home’s cleanliness. There were
additional concerns regarding mother’s boyfriend and his mental health. These issues continued to cause the
Department concern until mother eventually moved out of the home.
On August 17, 2012, A. was ordered
detained. A. had never resided with
mother; after A.’s release from the hospital at about two months of age, she
was placed in foster care.
At the
jurisdictional hearing, the juvenile court found the allegations of the
petition to be true and determined A. was a person described by subdivision (b)
of section 300. It set the matter for
disposition on October 24, 2012.
After a
number of continuances, the disposition hearing was held December 20, 2012. At the conclusion of the proceeding, the
juvenile court found a substantial danger would be posed to A. were she to be
placed in the care of mother. Mother was
afforded family reunification services.
The juvenile court set the matter for a six-month review hearing and advised
mother regarding her appellate rights.
This appeal followed.
DISCUSSION
On appeal,
mother challenges the sufficiency of the evidence relating to the juvenile
court’s dispositional findings.
I. Applicable Legal Standards
Section 300
provides, in relevant part:
“Any
child who comes within any of the following descriptions is within the
jurisdiction of the juvenile court which may adjudge that person to be a
dependent child of the court: [¶] …
[¶]
“(b)
The 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, or the willful or negligent failure of the child’s parent or guardian
to adequately supervise or protect the child from the conduct of the custodian
with whom the child has been left, or by the willful or negligent failure of
the parent or guardian to provide the child with adequate food, clothing,
shelter, or medical treatment, or by the inability of the parent or guardian to
provide regular care for the child due to the parent’s or guardian’s mental
illness, developmental disability, or substance abuse.â€
In
reviewing a challenge to the sufficiency of the evidence supporting the
jurisdictional findings and disposition, we determine if substantial evidence,
whether or not that evidence is contradicted, supports those findings. “In making this determination, we draw all
reasonable inferences from the evidence to support the findings and orders of
the dependency court; we review the record in the light most favorable to the
court’s determinations; and we note that issues of fact and credibility are the
province of the trial court.†(
193.)
“We do not reweigh the evidence or exercise independent
judgment, but merely determine if there are sufficient facts to support the
findings of the trial court.
[Citations.] ‘“[T]he [appellate]
court must review the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence … such that a
reasonable trier of fact could find [that the order is appropriate].â€â€™ [Citation.]â€
(In re Matthew S. (1988) 201
Cal.App.3d 315, 321; see also In re I.J.
(2013) 56 Cal.4th 766, 773.)
“Evidence from a single witness, even a party, can be
sufficient to support the trial court’s findings. (In re
Casey D. (1999) 70 Cal.App.4th 38, 52–53; In re Rocco M. (1991) 1 Cal.App.4th 814, 820; In re Cheryl E. (1984) 161 Cal.App.3d 587, 598.)†(In re
Alexis E. (2009) 171 Cal.App.4th 438, 451.)
II. The Finding That Mother
Made Minimal Progress
Mother
contends the juvenile court’s finding that she made minimal progress toward
addressing the causes that led to A. being placed outside the home was
inaccurate. More particularly, she
claims that (1) the petition did not assert specific dangers resulting from
mother’s medical marijuana use, (2) she resolved the allegation pertaining to
her mental health and (3) by obtaining her own home she alleviated concerns
regarding the home she once shared with a live-in boyfriend. Mother also alleges she obtained employment,
participated in all visits with A., and completed several required classes,
thus, her progress was more than minimal.
At the
disposition hearing, the juvenile court found, in relevant part:
“[The Court]: [Mother] knows about the child’s medical
conditions. She has attended the
doctors’ visits and so forth. But the
underlying concerns that were expressed by [the agency’s attorney] do remain,
and the—getting the [medical marijuana] card yesterday from what appears to be
some other different doctor, not Dr. Thacker, and not—and not leveling
with [Dr. Thacker] as to what she’s been doing is of great concern. [¶] … [¶]
“The
mother has made minimal progress toward alleviating or mitigating the causes
for the child’s placement in out-of-home care.
[¶] … [¶]
“The
mother’s ordered to participate in counseling for parenting, child neglect and
substance abuse and to comply with the recommendations of her doctor regarding
her mental health.
“She is
to submit to random, unannounced urine drug tests on at least a monthly basis.â€
The Petition
Mother
argues that allegation b-1 of the petition “concerned Mother’s medicinal use of
marijuana while she was pregnant,†and the subsequent positive result for that
drug shortly after A.’s birth, but that “no report was made or evidence
presented … that Mother’s medicinal use of marijuana created†a risk to A. as
affecting her ability to parent. To the
degree mother can be understood to challenge the sufficiency of the petition,
her claim lacks merit.
The
petition filed contains the following allegation:
“b-1 On or about May 15, 2012, the mother … used
Marijuana while pregnant with the child, [A.].
The mother used Marijuana throughout her pregnancy with the child. The child’s meconium tested positive for
Marijuana on June 1, 2012 at the time of the child’s birth. On June 12, 2012, the mother tested
confirmed positive for Marijuana at a level indicated to be 0.30uG/mL. On June 26, 2012, the mother ‘had a
couple of hits’ of Marijuana. On
June 27, 2012, the mother tested confirmed positive for Marijuana
indicated to be 0.10uG/mL. The mother
suffers from depression and uses Marijuana to self medicate.â€
Putting
aside the fact the sufficiency of a petition cannot be challenged for the first
time on appeal (In re Christopher C.
(2010) 182 Cal.App.4th 73, 82-83), the foregoing allegation is sufficient.
In
dependency proceedings, the petition must “provide ‘meaningful notice’ that
must ‘adequately communicate’ social worker concerns to the parent.†(In re
Jessica C. (2001) 93 Cal.App.4th 1027, 1037, quoting In re Fred J. (1979) 89 Cal.App.3d 168, 177; see also
Cal.App.4th at p. 83.) A parent should
be given notice of the specific factual allegations facing her with sufficient
particularity, thus permitting her to properly defend the charge. (In re
Fred J., supra, at p. 175.) Relevant here, a petition alleging that a
child comes within subdivision (b) of section 300 must allege that the child
has suffered, or substantial risk exists that the child will suffer, serious
physical harm or illness as a result of the parent’s substance abuse. It must establish the severity of the
physical harm and that the acts may continue into the future. (See In
re Rocco M., supra, 1 Cal.App.4th
at p. 823.)
Here, the
petition sets forth the Department’s concern regarding mother’s use of
marijuana during her pregnancy and continuing thereafter. It established harm with the presence of
tetrahydrocannabinol (THC) in A.’s meconium, and mother confirmed continued use
of marijuana in the month following A.’s birth.
Plainly the Department was concerned with mother’s use of marijuana to
“self medicate.†Mother had meaningful
notice regarding the social worker’s concerns.
Those concerns were pled with sufficient particularity to allow mother
to meet the charge that the Department believed her use of marijuana presented
a substantial risk of serious physical harm.
(In re T.V. (2013) 217
Cal.App.4th 126, 131 [factual allegations need not reiterate social worker’s
report; petition must plead essential facts].)
We note
that mother’s characterization of her use of marijuana as “medicinal†is
disingenuous on this record. Initially
mother claimed, as is noted in the petition, that she used marijuana to treat
depression. However, at that time of the
jurisdictional hearing, mother testified she did not have a medical marijuana
card. It was not until the dispositional
hearing in December 2012 that mother testified differently. On that occasion she claimed to use marijuana
to treat chronic leg and back pain. And,
on that basis, mother obtained a medical marijuana card the day prior to the
dispositional hearing. Therefore, with
regard to the allegation in the petition concerning mother’s marijuana use,
that use was arguably not medicinal or legal in the sense it was sanctioned by
any medical professional.
A. Medical Marijuana Use
Relying
upon Jennifer A. v. Superior Court
(2004) 117 Cal.App.4th 1322, 1346, mother argues there was no evidence that her
use of medicinal marijuana affected her ability to parent her daughter. No one reported she was “under the influence
of marijuana, smelled of marijuana, or that [her] use was negatively affecting
her behavior.†She claimed that although
A.’s meconium reflected her use of marijuana, “no evidence was presented that
this resulted in addiction or specific harm†to A. Mother claims her continued marijuana use and
the positive tests associated therewith were “to be expected, given [her]
medicinal use of marijuana.â€
We find it
important to note, again, that mother’s characterization of her use of
marijuana as medicinal is suspect.
Mother claimed initially to be using marijuana to treat her depression,
without the benefit of doctor oversight.
Yet later, mother claimed she used marijuana to treat chronic back and
leg pain. She also testified at the
hearing that she told her mental health care provider of her marijuana
usage. However, the doctor’s records
reveal otherwise: Mother denied the use
of marijuana. In any event, we find the
record is sufficient to support the juvenile court’s dispositional finding on
this basis.
Mother’s
reliance upon Jennifer A. v. Superior
Court, supra, 117 Cal.App.4th
1322 does not assist her. In
concluded the evidence was insufficient to support the finding that returning
the minors to the mother’s custody would create a substantial risk of detriment
pursuant to section 366.22. (
case, the minors had not been removed from the mother’s custody due to the
mother’s drug use. Instead, the minors
were removed because the mother left them alone on one occasion to go to work,
believing that the father (whose car had broken down, unbeknownst to her) would
arrive shortly to care for them. (
established that the mother had complied with the reunification plan, had been
employed for two years and recently received a promotion, was cooperative with
the agency, had always acted appropriately, and had displayed appropriate
parenting skills. There was no evidence
of a history of mental illness, incarceration, or a substance abuse problem
affecting her parenting skills. The
court found the mother’s one positive drug test and several missed or diluted
tests between the 12-month review report/hearing and the 18-month review
report/hearing did not mean that “the children’s return to [her] would create a
substantial risk of detriment to the
physical or emotional well-being of the children in light of the factors in
this case militating in favor of their return.†(Jennifer A. v. Superior Court, supra,
at p. 1346.)
Significantly,
the children were removed in Jennifer A.
for a reason other than the mother’s drug use:
She had left them alone on one occasion to go to work. Here, on the other hand, A. was ordered
detained because her meconium discharge revealed the presence of THC, mother
was self-medicating depression with marijuana, and mother’s home at the time of
A.’s birth was unacceptable. Further,
unlike the mother in Jennifer A.,
mother does not yet have a history of compliance with reunification
services. The mother in
court review, including completion of drug testing and drug programs and had 84
drug-free tests. (Jennifer A. v. Superior Court,
supra, 117 Cal.App.4th at p.
1343.) Here, in contrast, at the time of
the disposition hearing, mother had made changes to the environment within
which A. would reside, but only within the two months prior to the
hearing. Also, mother continued to test
positive for marijuana despite advising her mental health provider that she was
no longer using the substance, and mother had only recently begun using the
substance with a physician-issued medical marijuana card. In fact, her use of marijuana had only been
legal for one day prior to the
dispositional hearing. Moreover, she had
yet to enroll in substance abuse counseling.
More
specifically, the record reveals that mother was subject to seven drug
tests. On each occasion she tested
positive for illegal marijuana use. The
positive results are dated June 19, July 6, August 16,
September 28, October 1 and 17, and November 15, 2012. Mother saw her mental health provider on
August 30, September 13 and October 11, 2012. Yet, on each occasion she denied the use of
marijuana.
to her parenting judgment.
Additionally,
mother’s testimony at the dispositional hearing reveals that her use of
marijuana presents a substantial risk that affects her ability to parent
A. Mother testified that she only smokes
marijuana at night in order to help her sleep.
She testified she would have “a couple hours†to sleep off its effects
before she would have to get up and care for A.. She did not believe it would negatively
affect her ability to care for A. during those few hours because she claimed to
be a light sleeper. The court was free
to find mother’s testimony not credible.
(In re Heather A., supra, 52
Cal.App.4th at p. 193.)
From this
evidence, it was reasonable for the juvenile court to infer mother’s marijuana
use would affect her ability to parent.
B. Mental Health
Mother
contends that she resolved allegation b-2 of the petition because she obtained
mental health treatment, was regularly attending counseling, and was compliant
with the medication prescribed by her doctor.
As a result, she claims her progress was not minimal and that she had
“completely mitigated the cause†for A.’s out-of-home placement on this basis.
The
petition alleged that mother “suffers from an
hallucinations including hearing whispers and seeing ghosts. The mother suffers from depression and uses
Marijuana to self medicate.â€
Here, the
juvenile court’s primary concern at disposition was mother’s continued use of
marijuana. The court did not expressly
find that mother’s progress in the area of her mental health was minimal; it
was said in an overall context. To the
degree the evidence established that mother was not truthful with her mental
health care provider concerning her illegal use of marijuana and that she
continued to use marijuana against her physician’s advice, such a finding is
supported by the record. On at least
three occasions, when treated by her mental health provider, Swati Thacker,
M.D., mother denied the use of marijuana.
Mother also claimed to understand the doctor’s concerns about mixing
psychotropic drugs, such as the Lexapro she was prescribed, with substances
such as marijuana. Dr. Thacker’s
records contradict mother’s testimony at the hearing that she had advised her
doctor about her use of marijuana. From
this evidence it was reasonable for the juvenile court to conclude mother’s
progress in addressing her mental health issues had been minimal.
C. Employment, Visitation and
Completion Issues
Mother
challenges the court’s findings with regard to the allegation set forth as b-3
of the petition:
“On June 12, 2012, the mother[’s] home had a foul
smell of urine, cigarette smoke, and rotting food. The kitchen had several flies, the dishes
were overflowing, and the home had several full ashtrays of cigarette
butts. There were large piles of
clothing found in the bathroom and a foul odor was present. The mother’s bedroom has a hole in the bottom
of the wall. A bedroom in the home
contained mold damage due to a roof leak.
The living room ceiling above the wood burning fireplace has a large
hole, with shards of ceiling sticking down.
On August 10, 2012, the carpeted floor in the living room had a
pile of dog feces, dog urine stains and the smell of dog urine. There are [a] total of five indoor dogs. There is a non covered air vent. On a desk there were cigarette butts in an
ashtray. There were cigarette butts in
an ashtray on top of a window fan. One
of the bathroom sinks is not operable.
In a shower stall the paint is peeling.
Around the bathtub outer edge there is a cigarette butt. In the shower drain there are cigarette
butts.â€
Mother
contends that at the time of the disposition hearing, she was living on her own
in an approved residence. She was no
longer living with her boyfriend Matt, with whom she had been residing at the
time the petition was filed. Because her
new home presented no environmental concerns, and because she was no longer
living with her boyfriend, she claims her progress was not minimal and she had
completely mitigated the cause for A.’s out-of-home placement on this basis.
But as
noted above, the juvenile court’s primary concern at disposition was mother’s
continued use of marijuana. The court
did not expressly find that mother’s progress in the area of her home
environment was minimal; it was said in an overall context. The juvenile court heard mother’s testimony
that she had been living on her own since approximately November 1 of that
year. It heard testimony that mother’s
new home had been visited on three occasions and that no one had voiced any
concerns with regard to the home environment.
Mother’s testimony in this regard was not contradicted. Nevertheless, there is other evidence
concerning the home environment from which the court could have assigned a
“minimal progress†label.
Regardless
of mother’s new home environment, the evidence obtained at the disposition
hearing also revealed that mother continued to smoke cigarettes. When asked whether anyone had indicated to
her that exposure to cigarette smoke or smell could be detrimental to her
daughter, mother indicated “[e]verybody†had told her so. She claimed she would quit smoking once she
was given custody of her daughter.
name="_ftnref4" title="">[3]
A. was born
prematurely. As a result, she was a
high-risk infant and would continue to be so for the first year of her
life. Her lungs were underdeveloped and
environmental concerns were high, particularly those associated with cigarette
smoking and secondhand smoke. Mother
herself testified at the disposition hearing that A.’s breathing “has sounded
raspy from day one.†Testimony taken
during the jurisdictional proceedings addressed the importance of the concern
that A. be protected from the environmental risk presented by cigarette
smoke. Smoking cessation was recommended
to mother early on.
title="">[4]
Based upon
the record, it was reasonable for the juvenile court to conclude that mother’s
progress in addressing the potential environmental dangers to A. had been
minimal. There continued to be a risk to
A. of the negative effects of secondhand cigarette smoke. (See In
re Alexis E., supra, 171
Cal.App.4th at p. 452.)
Mother
argues that in addition to addressing the causes that led to A.’s out-of-home
placement, she made “other progress that went beyond ‘minimal,’†including
obtaining employment, maintaining appropriate visits with A. and attending
related medical appointments, and completing courses in parenting and neglect,
shaken baby syndrome, CPR and car seats.
There is no evidence to suggest the juvenile court did not consider
these factors. As previously noted, it
is plain from the record that the court was primarily concerned with mother’s
continued use of marijuana and the fact that she dishonestly represented to her
mental health care provider that she was no longer using that substance.
It is also
worth noting that mother had maintained employment for less than two months at
the time of the disposition hearing.
More significantly however, mother had not yet completed, nor even
enrolled in, substance abuse counseling.
compliant with the recommended counseling, she is wrong.
In sum, on
this record, and viewing the evidence in the light most favorable to the
juvenile court, we find there is sufficient evidence to support the juvenile
court’s findings that mother’s progress in mitigating the causes that led to
A.’s out-of-home placement was minimal.
(In re Heather A., supra, 52
Cal.App.4th at p. 193.)
III. The Finding That A. Faced a
Substantial Risk if Returned to Mother’s Care
Mother
contends that “substantial evidence†does not support the juvenile court’s
finding that A. faced a substantial risk if she were returned to mother’s
care. She claims that because she
addressed her mental health issues, and had found a suitable place to live,
coupled with the fact no evidence was presented to establish that her medicinal
use of marijuana would impair her parenting ability, the court’s finding was
based upon speculation alone. We do not
agree.
Mother’s
citation to In re David M. (2005) 134
Cal.App.4th 822 is misplaced. In
the juvenile court’s jurisdictional order because there was no evidence tying
the mother’s marijuana use to actual harm or a substantial risk of serious harm
to the minors. The mother in
while pregnant with one child and did not receive prenatal care. However, both of her children tested negative
for marijuana at birth. The mother
claimed her positive drug test for marijuana metabolites was due to being in
the presence of others who were using marijuana. Moreover, the mother tested negative for
drugs approximately 18 times during the four-month period between the detention
and jurisdiction hearings, and all of the evidence of her prior substance abuse
was derived from four-year-old reports.
(In re David M.,
uncontradicted that David was healthy, well cared for, and loved, and that
mother and father were raising him in a clean, tidy home.†(Id.
at p. 830.)
distinguishable. First, mother’s
marijuana use here was recent and documented.
There was no reliance on four-year-old reports to document the alleged
drug use; she admitted using it during her pregnancy and continued to use the
substance illegally until the day prior to the dispositional hearing when she
obtained a medical marijuana card.
Unlike the children in David M.,
A.’s meconium at birth tested positive for THC.
Second, the mother in David M.
submitted to numerous drug tests, all of which were negative. Here, mother tested positive for the illegal
substance on every occasion, while she denied use of the substance to her
mental health care provider and social workers.
Third, the mother in David M.
was caring for her older child and there was no evidence that she was unable to
care or protect him. Here, A. was mother’s
first child, born prematurely and considered to be at risk for the first year
of her life. A. had never resided with
mother, and mother’s visits were limited to two hours per week. Thus, this case is significantly different
from David M. and does not suggest a
similar result.
Mother also
relies upon In re Drake M. (2012) 211
Cal.App.4th 754 to support her position.
There, the agency alleged a child was at risk of serious physical harm
because the child’s father “(1) continued to test positive for marijuana on
drug screens throughout the dependency proceedings; (2) admitted to smoking
marijuana up to four or five times per week; and (3) [transported the child]
from daycare and cared for him alone four hours after smoking marijuana.†(Id.
at p. 764.) Drake M. concluded the evidence failed to show the father was a
substance abuser or that he had failed or was unable to supervise or protect
the child. On the latter point,
recommendation from a physician to use marijuana for treatment of his chronic
knee pain. His continuing usage and
testing positive for cannabinoids on drug screens, without more, is
insufficient to show [the child] was at substantial risk of serious physical
harm or illness.†(In re Drake M., at p.
768.) The court concluded the agency had
failed to show a link between father’s usage of medical marijuana and risk of
serious physical harm or illness to the child.
(Id. at pp. 768-769.)
Here, as
noted previously, mother did not have a valid recommendation from a physician
to use marijuana until the day prior
to the dispositional hearing. Thus, her
usage throughout these proceedings was illegal and contrary to the advice of
her mental health care provider.
Moreover, unlike the father in Drake
M. who consistently asserted and could establish his use of
marijuana-treated chronic knee pain, mother’s reason for its use was
inconsistent. Mother initially asserted
she used marijuana during her pregnancy with A. to increase her appetite and to
treat depression, and she continued to use marijuana after A.’s birth to treat
depression. However, at the disposition
hearing, mother testified she used marijuana to treat chronic leg and back pain
because it helped her sleep. Moreover,
unlike Drake M., there is “more†in
this case—mother was dishonest with her mental health care provider. Mother was reporting to Dr. Thacker that
she was not using marijuana—an inaccuracy established by both mother’s own
testimony and by the toxicology results.
Mother’s use of marijuana was illegal and in disregard of
Dr. Thacker’s advice to avoid such substances.
In
follows:
“…
While it is true that the mere use of marijuana by a parent will not support a
finding of risk to minors [citations], the risk to the minors here is not
speculative. There is a risk to the
children of the negative effects of secondhand smoke.
“Health
and Safety Code section 11362.79 states that nothing in the statutory
provisions for the state’s voluntary medical marijuana program (Health &
Saf. Code, § 11362.5 et seq.) authorizes a person lawfully using medical
marijuana to use it ‘within 1,000 feet of the grounds of a school, recreational
center, or youth center, unless the medical use occurs within a residence,’ or
to use it on a school bus, or in a motor vehicle that is being operated. A reasonable inference to be drawn from this
prohibition is that use of marijuana near others can have a negative effect on
them.
“Section
300.2 provides that the purpose of the provisions in the Welfare and
Institutions Code relating to dependent children is to provide protection for
children being harmed or who are at risk of being harmed. Section 300.2 further states that ‘[t]he
provision of a home environment free from the negative effects of substance
safety, protection and physical and emotional well-being of the child.’ (Italics added.) We cannot fathom that the Legislature
intended that negative effects on children from marijuana smoke would be
unacceptable if it were being smoked outside the medical marijuana law, but
acceptable if the person smoking the substance in their home were doing it
legally. Or perhaps stated another way,
even legal use of marijuana can be abuse if it presents a risk of harm to
minors.†(In re Alexis E., supra, 171 Cal.App.4th at p. 452.)
The
negative health effects of secondhand smoke are well known. (See Health & Saf. Code, § 104350,
subd. (a)(5) [legislative finding that involuntary smoking is a cause of
disease, including lung cancer, in healthy nonsmokers]; Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1693
[citing 1993 Environmental Protection Agency report conclusion that secondhand
smoke kills 3,000 nonsmoking Americans each year].) On this record, there is evidence that
mother’s use of marijuana affects her ability to parent.
This is not
a situation wherein a parent’s use of either cigarettes or marijuana and the
effect of secondhand smoke present the only risk to an otherwise healthy
child. Rather, here, A. is a high-risk
infant, born significantly premature.
While the record establishes she was progressing and healthy, it also
establishes that in light of her premature birth—and underdeveloped lungs—she
remains high risk for the first year of her life. At the time of the disposition hearing, A.
was a high-risk infant at the age of five months. Mother continued to smoke cigarettes and
continued to use marijuana. It was
reasonable for the juvenile court to conclude that A. faced a substantial risk
of harm if returned to mother’s care.
IV. The Finding Regarding A.’s
Removal
Mother
contends there is insufficient evidence to support the juvenile court’s order
for continued removal of A. from her custody.
At the time
of the proceedings, section 361, subdivision (c)(1) provided:
“A
dependent child may not be taken from the physical custody of his or her
parents or guardian or guardians with whom the child resides at the time the
petition was initiated, unless the juvenile court finds clear and convincing
evidence of any of the following circumstances …:
“…
There is or would be a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the minor if the minor were
returned home, and there are no reasonable means by which the minor’s physical
health can be protected without removing the minor from the minor’s parent’s or
guardian’s physical custody. The fact
that a minor has been adjudicated a dependent child of the court pursuant to
subdivision (e) of Section 300 shall constitute prima facie evidence that the
minor cannot be safely left in the physical custody of the parent or guardian
with whom the minor resided at the time of injury. The court shall consider, as a reasonable
means to protect the minor, the option of removing an offending parent or
guardian from the home. The court shall
also consider, as a reasonable means to protect the minor, allowing a
nonoffending parent or guardian to retain physical custody as long as that
parent or guardian presents a plan acceptable to the court demonstrating that
he or she will be able to protect the child from future harm.â€
“The parent need not be dangerous and the child need not
have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm
to the child.†(In re Cole C. (2009) 174 Cal.App.4th 900, 917.) Although the juvenile court’s findings must
be based on clear and convincing evidence,
we review an order removing a child from parental custody for substantial
evidence. (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.)
“The juvenile court has broad discretion to determine
what would best serve and protect the child’s interest and to fashion a
dispositional order. (
1098, 1103-1104.) On a challenge to an
order removing a dependent child from his or her parent, we ‘view the record in
the light most favorable to the order and decide if the evidence is reasonable,
credible and of solid value.’ (
evidence to support the findings and orders of the dependency court. (In re
Heather A. [(1996)] 52 Cal.App.4th [183,] 193.)†(In re
Javier G. (2006) 137 Cal.App.4th 453, 462-463.)
Here, the
juvenile court found as follows:
“There
is clear and convincing evidence there’s a substantial danger to the physical
health, safety, protection or physical or emotional well-being of the child or
there would be if the physical custody of the child is not removed from the
parent and there are no reasonable means to protect the child’s physical health
without removal of the child from the physical custody of the mother.
“The
social worker solicited and integrated into the case plan the input of the
child’s family and other interested parties.
“The
Department … has complied with the case plan by making reasonable efforts and
providing reasonable services to prevent or eliminate the need for removal of
the child from the home and to make it possible for the child to safely return
home and to complete whatever steps are necessary to finalize the permanent
placement of the child.
“This
child was ordered removed from the physical custody of the mother based on the
facts set forth in the sustained petition, the report of the social worker and
the evidence presented.
“The
status of the child is reviewed under Section 366(a) ….
“The
child’s out-of-home placement is appropriate and necessary.â€
Mother
contends removal was improper because she had addressed her mental health
issues and found a suitable place to live.
She contends no evidence was presented to show her use of marijuana
affected her ability to parent. She
points to the fact A. “was no longer a fragile preemie,†had traveled out of
state, and had made significant health gains.
Mother asserts “[a]ll that existed at the time of the disposition
hearing, six months after [A.]’s birth, was speculation that Mother’s medicinal
use of marijuana might put [A.] at risk of serious physical harm.†Finally, mother claims the juvenile court
failed to consider less drastic measures than continued removal.
As
discussed above, mother’s mental health issues had not been completely
addressed. Additionally, she was
dishonest with her mental health care provider and others about her illegal use
of marijuana. We believe that speaks to
her ability to parent. Also, as noted
above, while mother had found a more suitable home, she had only resided in the
home for less than two months. In light
of the evidence in this record, it was not unreasonable for the juvenile court
to have reservations about mother’s ability to maintain a suitable environment
for A. in the long term. Mother’s
previous efforts to maintain a suitable environment were inconsistent.
Further,
while the record establishes that A.’s overall health continued to improve, and
she did in fact travel with her foster family out of state, the record also
established that due to A.’s premature birth at 29 weeks, she is considered to
be a high-risk infant for the first year of her life. A.’s lungs were underdeveloped at birth;
smoking and secondhand smoke presented a significant risk. A. was less than five months old at the time
of the disposition hearing. Thus, she
was still considered to be a high-risk infant.
Moreover, the fact A. was approved to travel with her foster family out
of state does not mean her high-risk infant status was negated by that
travel. It is important to note that no
one in the foster home smoked, therefore, A. was not subject to the same risks
with her foster family as those presented by her mother’s care.
We have
already addressed mother’s claim that her use of medicinal marijuana does not
put A. at a substantial risk of harm. As
thoroughly discussed above, we find to the contrary and need not repeat the
analysis here.
For all of
the reasons given above, we cannot agree with mother that the juvenile court
failed to consider less drastic measures.
There was sufficient evidence before the juvenile court to indicate that
even strict supervision by the Department would not protect A. from the
possibility of harm.
To
conclude, the juvenile court’s order was based upon substantial evidence. It was focused, as it should have been, on
averting any potential harm to A. (
p. 917; In re J.K., supra, 174
Cal.App.4th at p. 1433.)
V. The Fundamental Right to
Parent and the Ability to Bond
Lastly,
mother argues that because the juvenile court found she made minimal progress
at the dispositional hearing, and because that finding is not supported by the
evidence, she has been denied the fundamental right and opportunity to parent
and bond with her daughter. She provides
a citation to In re K.P. (2012) 203
Cal.App.4th 614 as “a cautionary tale about the potential implications for
Mother and [A.] as a result of the juvenile court’s minimal progress
finding.†This argument is simply a
rehash of her earlier arguments.
As
explained in detail above, we have already determined the juvenile court’s
challenged findings are supported by sufficient or substantial evidence. However, mother is correct that the facts of
tale. Given the fact mother’s parental
rights have not been terminated, and she has the opportunity to correct the
deficiencies identified at the dispositional hearing, and to effect change
during reunification, we hope she will do so.
DISPOSITION
The
dispositional orders entered on December 20, 2012, are affirmed.
name="_ftn1" title="">*Before
Kane, Acting P.J., Poochigian, J. and Franson, J.
name="_ftn2" title="">[1]All
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
