In re Angelo W.
Filed 3/7/13 In re Angelo W. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
In re ANGELO W., a Person Coming Under the Juvenile Court
Law.
B242605
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent,
v.
R.W.,
Defendant
and Appellant.
(Los
Angeles County
Super. Ct.
No. CK61597)
APPEAL
from an order of the Superior Court
of
County, Veronica S. McBeth, Judge. Affirmed.
Suzanne
Davidson, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Sarah
Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
_________________________
INTRODUCTION
In
this appeal, mother R.W. contends there is insufficient
evidence to support the juvenile court’s order removing three-year-old
Angelo W. from her custody (Welf. & Inst. Code, § 361).
FACTUAL
AND PROCEDURAL BACKGROUND
The
Department of Children and Family
Services (the Department) received a referral in September 2011 alleging
mother had been arrested for possession of a methamphetamine pipe and Angelo,
then 23 months old, was missing. Mother
has a long history, beginning in 1994, of arrests and convictions for
possession, or being under the influence, of controlled substances. Mother was transient and left Angelo with
Vicky A. before being arrested.
Vicky A. informed the social worker that she had lived with mother but
moved out because of mother’s drug use, which behavior attracted drug dealers
and users. The maternal grandmother
refused to allow mother into her house because of mother’s methamphetamine use
and refusal to seek help. Mother had
completed a drug rehabilitation program
and claimed to have been sober for two or three years before relapsing.
Mother also has a
long history with the Department dating to 2005. The juvenile court terminated her parental
rights to three older children, and she relinquished her rights to a fourth
child. She did not know who Angelo’s
father is, stating there were “[a] couple [of] options.â€
On October 6, 2011, mother agreed to
submit to a drug test and tested positive for methamphetamines and
amphetamines. She claimed not to know
why the test was dirty. Mother admitted
having used drugs two weeks earlier, but denied having a drug problem or that
drugs affected her ability to care for Angelo.
On October 13, 2011, the Department
removed Angelo from mother’s custody and filed a petition alleging Angelo was
at risk of harm because of mother’s extensive history of drug use, recent
positive drug test, and the fact mother had lost her parental rights to Angelo’s
siblings. (§ 300, subd. (b).) Mother promised to enroll in a residential
treatment program at Phoenix House but failed to, reportedly because of a
“ ‘family function.’ †The
Department recommended that mother be denied reunification services pursuant to
section 361.5, subdivision (b)(11) [parent lost parental rights over a sibling
and has not made reasonable effort to treat problems leading to sibling’s
removal]. The juvenile court ordered
Angelo detained from mother.
The police
arrested mother again in November 2011 for a parole violation and deposited her
at the Phoenix House residential drug treatment program pursuant to her
criminal sentence. Once in the facility,
mother produced negative drug-test results and actively participated in therapy
and parenting workshops. The Department
changed its recommendation and advised the juvenile court to grant mother
reunification services. However, the
Department recommended against releasing Angelo to mother just yet because she
had only been in treatment a short time.
In view of the length of mother’s drug abuse, the social worker felt it
would be premature to return the child to mother until she had more time to
stabilize her rehabilitation and focus on her treatment.
The juvenile court
sustained the petition as described above and took judicial notice of the
dependencies. It ordered the Department
to investigate mother’s progress in her rehabilitation program and the quality
of mother’s visits with Angelo, and to report any changes in the Department’s recommendations.
Two weeks later,
the Department reported that mother remained in compliance with her residential
treatment program, and continued to test negative for drugs. The Department again wrote: “Due to Mother’s
long standing substance abuse history [the Department] believes it is still
early in Mother’s recovery process and release of the child to Mother at this
time is premature.†Over the
Department’s objections, the court granted mother two-hour unmonitored visits
twice a week with Angelo at her residential treatment facility.
Phoenix House
closed down for lack of funding and so mother transferred to Walden House. The social worker observed mother’s visits
and found that Angelo appeared happy and comfortable in mother’s presence. Mother acted appropriately. Walden House confirmed it would accommodate
Angelo, if the court released him to mother’s care.
At the time of the
May 2012 disposition hearing, mother was in compliance with her drug treatment
program and with the terms of her parole. According to her parole officer, mother
accepted full responsibility for her actions and expressed remorse for her
crimes. Her parole will expire in March
2014.
At the disposition
hearing, mother called Walden House’s Program Director who did not see any
drawbacks to having Angelo placed with mother at the facility. The director did acknowledge on
cross-examination that mother was free to leave the program at any time and
could simply walk out the door with the child.
Mother called her
counselor at Walden House who testified that mother was doing well in the
program and it would be appropriate for Angelo to reside there with her. However, the counselor did not know how long
mother had been sober, the length of mother’s drug history, whether mother had participated
in a recovery program before, or that mother had tested positive for
methamphetamines as recently as the previous October.
Mother could not
remember how many drug rehabilitation programs she had previously attended and
acknowledged those earlier attempts at recovery were unsuccessful. She claimed she was finally willing to become
sober because she had lost everything when she lost Angelo. She had not bonded with her other children
because she gave birth to them while incarcerated and the authorities removed
the babies immediately after their birth.
At the close of
the hearing, the juvenile court ordered Angelo removed from mother’s
custody. (§ 361, subd. (c).) The court found that the child would be in
substantial danger if he were not removed and there was no reasonable means by
which the child could be protected without his removal because of mother’s
extensive history of drug abuse and the seriousness of the drugs involved,
where the relapse rate is extremely high.
Noting mother’s long period of methamphetamine use and her transience,
the court congratulated mother on doing what was asked of her, but ruled “it is
too soon to have your child placed with you.â€
The court was “not willing to risk placement of [mother’s] son with
[her] until [she] had a longer period of sobriety.†The court ordered family reunification
services for mother and awarded her monitored visitation outside of her program
and unmonitored visits in her program.
Mother filed this appeal.
CONTENTION
Mother
contends that there is insufficient evidence to support the order removing
Angelo from her custody.
DISCUSSION
To
remove a child from his or her parent’s custody, the juvenile court must find
“[t]here 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. . . .†(§ 361, subd. (c)(1)). Removal must be supported by clear and
convincing evidence. (
Cal.App.4th 522, 528-529.) “ ‘A removal
order is proper if it is based on proof of parental inability to provide proper
care for the minor and proof of a potential detriment to the minor if he or she
remains with the parent.
[Citation.]’ †(
965, 969.) “ ‘The parent need not be
dangerous and the minor need not have been actually harmed before removal is
appropriate. The focus of the statute is
on averting harm to the child. [Citation.]’
[Citations.]†(
parent’s past conduct in addition to present circumstances. (In re
Cole C. (2009) 174 Cal.App.4th 900, 917.)
We
review an order removing a child from parental custody for substantial evidence
in a light most favorable to the juvenile court findings. (In re
J.K. (2009) 174 Cal.App.4th 1426, 1433.) “In reviewing the sufficiency of the evidence
on appeal, we look to the entire record to determine whether there is
substantial evidence to support the findings of the juvenile court. We do not pass judgment on the credibility of
witnesses, attempt to resolve conflicts in the evidence, or determine where the
weight of the evidence lies. Rather, we
draw all reasonable inferences in support of the findings, view the record in
the light most favorable to the juvenile court’s order, and affirm the order
even if there is other evidence that
would support a contrary finding.
[Citation.] When the trial court
makes findings by the elevated standard of clear and convincing evidence, the
substantial evidence test remains the standard of review on appeal. [Citation.]
The appellant has the burden of showing that there is no evidence of a
sufficiently substantial nature to support the order. [Citations.]â€
(In re Cole C.,
italics added.)
The
evidence amply supports the juvenile court’s decision to remove Angelo from
mother’s custody. Mother’s long history
of drug abuse and rehabilitation relapses is serious and intractable. Mother is 32 years old and has been abusing drugs
for 19 of those years. Her drug of
choice is methamphetamines and amphetamines which have a high rate of
recidivism. She admitted to having
attended more substance abuse programs than she could remember and she could
recall having completed only one. The Department repeatedly advised the court
that mother needed more time in recovery.
As a consequence of her drug abuse, people in her life, such as her own
family and Vicky A., refuse to be around mother, and so mother is
transient. She also lost parental rights
to her other children because of her drug abuse, a statutory justification for
denying reunification services outright.
(§ 361.5, subd. (b)(11).) We
reject mother’s argument that Walden House would protect Angelo. The director testified that Walden House
would not prevent mother from leaving the program with Angelo at any time. And, mother’s counselor there was unaware of
the extent of mother’s drug use and recidivism when she opined it would be
appropriate for Angelo to reside with mother there. The focus of section 361.5, subdivision (c)
is to avert harm to the child. (In re
Miguel C., supra, 198
Cal.App.4th at p. 969.) Therefore,
although mother has made strides in her efforts at sobriety this time around,
given her entrenched history of drug abuse and relapses, the record amply
supports the juvenile court’s finding by clear and convincing evidence that it
was premature to return the baby to mother’s custody after only six months of
rehabilitation.
DISPOSITION
The
order is affirmed.
ALDRICH,
J.
We concur:
KLEIN,
P. J.
CROSKEY,
J.
name="_ftn1" title="">[1] All further statutory references are to the Welfare and
Institutions Code.
