In re Arianna M.
Filed 9/16/13 In re Arianna M. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re ARIANNA M., a Person
Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
BREANNA K.,
Defendant and Appellant.
D063667
(Super. Ct.
No. NJ14780)
APPEAL from
a judgment of the Superior Court
of
County, Michael J. Imhoff, Commissioner. Affirmed.
Michele
Anne Cella, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and
Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
Breanna K.
appeals following the jurisdictional and
dispositional hearing in the juvenile dependency case of her daughter,
Arianna M. Breanna contends substantial
evidence does not support the jurisdictional finding and the dispositional
order removing Arianna from her custody.
We affirm.
BACKGROUND
Breanna's
substance abuse began in 1990 or 1991, when she was 10 years old. She started with alcohol, then progressed to
marijuana and methamphetamine, her drug of choice. In July 2002, Breanna gave birth to her first
child, Mason K. Breanna was a victim of
domestic violence in her relationship with Mason's father. When Mason was two years old, a neighbor
found him wandering in the street while Breanna slept. In May 2011, the probate court granted the
maternal grandmother temporary guardianship of Mason.
Breanna began
a relationship with Scott S., a methamphetamine user, and in December 2011,
gave birth to their child, Jeffrey S. In
April, May and June of 2012, the San Diego County Health and Human Services
Agency (the Agency) received referrals alleging domestic violence between
Breanna and Scott and drug use by both.
The Agency asked Breanna to drug test three times, but she did not
comply, and she brought someone else's urine to one of the tests. The Agency asked Breanna to attend a team
decision meeting, but she did not show up.
At one point during the Agency's investigation, Breanna disappeared with
Jeffrey for more than a day.
Meanwhile,
in early 2012, Breanna began a relationship with Alex M. Alex had a lengthy substance abuse history
and admitted having been arrested more than 50 times for drug-related
offenses. He used methamphetamine but
denied having a drug problem.
In June
2012, Breanna voluntarily surrendered Jeffery to the care of the maternal
grandmother. In July, Alex was jailed on
a charge of possessing a controlled substance and Breanna disappeared
again. After August, Breanna made no
attempt to contact Mason or Jeffrey, and the maternal grandmother became their
permanent guardian.
Breanna
claimed that in August 2012, when she learned she was pregnant with Arianna,
she stopped using methamphetamine and began a drug treatment program at
Serenity House, as ordered by the probate court. Breanna said she quit the program after three
weeks due to transportation difficulties.
She also said that when she became pregnant, she stopped taking
psychotropic medication, although her doctor had prescribed the anti-anxiety
medication Ativan for use during pregnancy.
with codeine for Breanna's bronchitis.
In October
2012, when Alex was released from jail, Breanna left the home of a relative
where she had been living and she and Alex became homeless. In January 2013, Breanna tested positive for
codeine at a homeless shelter. Later
that month, Arianna was born. Alex
admitted he had used methamphetamine five days before her birth and his last
incarceration had been two weeks before her birth.
In February
2013, the Agency filed a dependency
petition on behalf of newborn Arianna.
(Welf. & Inst. Code, § 300, subd. (b).)
2012, Breanna abused methamphetamine, rendering her unable to provide regular
care for Arianna. Specifically, Breanna
had a history of using methamphetamine and marijuana. She admitted using drugs since the age of 10
and using drugs during pregnancy.
Breanna was unable to provide Arianna with adequate shelter and supplies
despite receiving referrals for community resources.
siblings, had relinquished custody of the half siblings and, in June 2012, had
failed to comply with a safety plan that included drug testing and
treatment. Scott, one of Arianna's
alleged fathers, had a history of excessive alcohol use. Alex, the other alleged father, had an
extensive criminal history and admitted he had a 20-year history of drug
use. Alex and Scott failed and were
unable to stop Breanna's drug use.
Arianna was
detained in a foster home. The juvenile
court found that Alex was her presumed father and struck Scott's name from the
petition.
On February
1, 2013, Alex had a negative drug test.
That day, social worker Tara Motley-Ladman attempted to interview
Breanna privately. Alex was reluctant to
leave the room and Breanna insisted that he be present for some of the
interview. She let him speak for her and
looked to him for answers. She called
him "Daddy" and appeared to rely on him to make decisions and take
care of her. Alex spoke rapidly; his
thoughts were scattered; and he often repeated himself and became angry. Motley-Ladman was concerned that there might
be domestic violence in the relationship.
During the
interview, Breanna claimed she did not have a drug problem, but said "she
would be open to treatment because, [t]here's always something to
learn." Alex said he planned to
stop using drugs, did not need treatment and tried not to use drugs in
Breanna's presence. Breanna said she
knew Alex was using drugs and that made it harder for her to abstain.
The Agency
obtained Alex's criminal record, which turned out to be more extensive than the
50 drug-related arrests he had acknowledged.
His record included convictions of drug offenses and weapons offenses.
On February
11, 2013, Breanna had a negative drug test.
On February 19, she telephoned social worker Todd Clark and said she and
Alex were "doing McAllister," a substance abuse treatment program.
"from the background," then took the telephone from Breanna and spoke
to Clark directly. The next day, Breanna
and Alex went to Clark's office together.
Breanna said she did not understand why Arianna had been detained and
Alex said "Breanna is being persecuted because of her past." Breanna and Alex claimed to be clean and
believed their drug use was not an obstacle to safe parenting. Breanna volunteered little information and
her answers to questions were short or vague.
Alex attempted to answer questions for Breanna. He was argumentative and sometimes "cut
[Breanna] off in mid[-]statement . . . ." He claimed that in the past, he had stopped
using methamphetamine for eight years and had consumed alcohol instead.
On February
21, 2013, Breanna had a second negative drug test. By that time, she and Alex
were residing in a sober living facility run by Bondage Ministries.
participate in dependency drug court. On
March 4 or 5, Alex was arrested for being under the influence of a controlled
substance, possessing methamphetamine, possessing drug paraphernalia and
resisting arrest. On March 5 and 7,
during unannounced visits, Clark found Breanna sober. On March 13, Breanna attended dependency drug
court for the first time. That day,
Clark received the results of Arianna's meconium testing. The test was positive for benzodiazepines and
opiates, which could have been caused by Breanna's use of Ativan and
codeine.
On March
20, 2013, the day of trial, Motley-Ladman attempted to interview Breanna. Breanna refused to speak without Alex
present, and he spoke "over" her and made "berating-type
comments towards her."
Motley-Ladman observed that Breanna was unable to "do anything
without" Alex, even speak to a social worker, and Breanna became
"tearful and agitated and very upset." Motley-Ladman was concerned that Breanna had
"entered into another relationship that ha[d] violence" and believed
that if Arianna were returned to Breanna, the risk would be "[v]ery
high." The Agency had not received
confirmation from the treatment center that Breanna and Alex were participating
in drug treatment.
The
juvenile court made a true finding on the petition, and ordered Arianna removed
from Breanna's custody (§ 361, subd. (c)(1)) and placed in a foster
home.
THE JURISDICTIONAL
FINDING
Section
300, subdivision (b) allows a dependency when "[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 . . . inability of the
parent . . . to provide regular care for the child due to
the parent's . . . substance abuse." Section 300 requires proof the child is
subject to the defined risk of harm at the time of the jurisdictional hearing. (In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1396.) In the juvenile court, the Agency had the
burden of proof by a preponderance of the evidence. (In re
Matthew S. (1996) 41 Cal.App.4th 1311, 1318; § 355, subd. (a).) Breanna now has the burden of showing the
jurisdictional finding is unsupported by substantial evidence. (In re
Diamond H. (2000) 82 Cal.App.4th 1127, 1135.) We view the record in the light most
favorable to the court's ruling. (
1140.)
Breanna had
a history of abusing methamphetamine and other substances for more than 20
years. Her oldest child had been found
wandering in the street, at the age of two, due to her neglect. She lost custody of him, and of her second
child, with no more than perfunctory participation in offered services and
after attempting to cheat on a drug test.
Contrary to Breanna's assertion, her history with her older children is
documented adequately in the Agency's reports.
Those reports were entered into evidence at the jurisdictional hearing
with no objection by Breanna.
Breanna
claimed she had stopped using methamphetamine months before the hearing
and denied having a problem with drugs.
She had previously quit a substance abuse treatment program and, she
said, had just begun treatment for the second time. She remained in a relationship with Alex, who
was still using methamphetamine and also denied having a problem with
drugs. Breanna acknowledged that Alex's
drug use made it more difficult for her to abstain from using methamphetamine,
her drug of choice.
Breanna
also had a history of involvement in violent relationships and had not
participated in any services related to domestic violence. Although Alex did not have a history of
domestic violence, he was domineering and verbally abusive to Breanna, and she
was extremely dependent on him.
Motley-Ladman, who had five years' experience as a social worker with
the Agency, was concerned that the relationship showed signs of being a violent
one.
The purpose
of section 300 "is to provide maximum safety and protection for children
who are currently being physically . . . or emotionally
abused [or] neglected . . . , and to ensure the safety,
protection, and physical and emotional well-being of children who are at risk
of that harm." (§ 300.2.) A parent's " '[p]ast conduct may be
probative of current conditions' if there is reason to believe that the conduct
will continue." (
461.) The child need not have been
actually harmed for the court to assume jurisdiction. (See In
re James R. (2009) 176 Cal.App.4th 129, 135.)
Substantial
evidence supports the jurisdictional findings.
THE REMOVAL
Before a
child can be removed from parental custody, the Agency must prove, by clear and
convincing evidence, "[t]here is or would be a substantial danger to [her]
physical health, safety, protection, or physical or emotional
well-being . . . if [she] were returned home" and
removal is the only reasonable means of protecting her physical health. (§ 361, subd. (c)(1).) "The parent need not be dangerous and
the minor need not have been actually harmed before removal is
appropriate. The
focus . . . is on averting harm to the child." (In re
Diamond H., supra, 82 Cal.App.4th
at p. 1136.)
On appeal,
Breanna has the burden of showing there is no substantial evidence justifying
Arianna's removal. (In re Diamond H., supra,
82 Cal.App.4th at p. 1135.)
" ' "The sufficiency of evidence to establish a
given fact, where the law requires proof of the fact to be clear and
convincing, is primarily a question for the trial court to determine, and if
there is substantial evidence to support its conclusion, the determination is
not open to review on appeal."
[Citations.]' [Citation.] Thus, on appeal from a judgment required to
be based upon clear and convincing evidence, 'the clear and convincing test
disappears . . . [and] the usual rule of conflicting
evidence is applied, giving full effect to the respondent's evidence, however
slight, and disregarding the appellant's evidence, however strong.' " (Sheila
S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881, quoted in
580-581.)
Breanna
contends the court ordered Arianna's removal based on an unsupported inference
that Breanna lacked insight into her previous drug use, and alternatively that
there was no evidence that any lack of insight presented a substantial risk of
harm to Arianna. Breanna further
contends the court could have placed Arianna with her with the Agency's
supervision, on condition that Alex not enter the home.
In ordering
removal, the court relied on Alex's recent drug arrest while living in a sober
living home; Breanna's statement that Alex's drug use was "hard on
her"; their lack of "guidelines on how to handle that"; their
resistance to treatment; and the "recurring patterns" these
circumstances represented. There was no
error.
Placement
with Breanna alone was not a realistic possibility. She and Alex resided in the same sober living
facility. In spite of Alex's verbal
bullying, Breanna deferred to him and depended on him. Her dependence was so extreme that in October
2012, she had chosen homelessness with him over a home without him. Breanna had a history as a victim of domestic
violence but had received no domestic
violence treatment. After many years
of drug abuse and noncompliance with drug treatment, Breanna's recent sobriety
and claimed participation in substance abuse treatment were positive first
steps. The caregiver's lack of
"concerns" with Breanna's conduct at supervised visits was an
additional positive factor. Arianna,
however, was less than two months old and was incapable of protecting
herself. Substantial evidence supports
the conclusion there would have been "a substantial danger to [Arianna's]
physical health, safety, protection, or physical or emotional
well-being . . . if [she had been] returned" to
Breanna and there were no reasonable means of protecting Arianna's physical
health short of removal. (§ 361,
subd. (c)(1).)
DISPOSITION
The
judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
McDONALD, J.
name="_ftn1" title="">[1]
Breanna had a diagnosis of
bipolar disorder. After Arianna's birth,
Breanna began taking medication for depression.
name="_ftn2" title="">[2]
All further statutory references
are to the Welfare and Institutions Code.
