In re B.A.
Filed 6/20/12 In re B.A. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SEVEN
In re B. A., a Person Coming Under the Juvenile Court Law.
B236350
(Los
Angeles County
Super. Ct.
No. CK82564)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent,
v.
E. S.,
Defendant
and Appellant.
APPEAL from an order of the Superior Court of
County, Marguerite D. Downing, Judge. Affirmed.
Neale
B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
John
F. Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel,
and Peter Ferrera, Senior Deputy County Counsel, for Plaintiff and Respondent.
_____________________________
INTRODUCTION
While
under the influence of methamphetamines, a mother abandoned her four-year-old,
and the child was detained and placed in foster care. The mother had a history of substance abuse
and mental and emotional
problems. At the six-month review
hearing, the dependency court found a substantial risk of detriment preventing
the child’s return to her mother at that time, but noted the mother’s efforts
to comply with her case plan and ordered continued reunification services as
well as an evaluation of the mother and her home in Mexico through the Mexican
social services agency known as DIF (Desarrollo Integral del la Familia). The mother appeals, asserting there was
insufficient evidence supporting the dependency court’s orders at the six-month
review hearing. We affirm.
FACTUAL AND
PROCEDURAL SUMMARY
In April 2010, the
(the Department) received a hotline referral concerning four-year-old B.
S. According to the reporter, B.’s
mother E. S. told the reporter she (E.) was very stressed out, had a history of
using “crystal†and was afraid she would start using drugs again. E. said she had separated from the child’s
father three weeks before but took B. to visit with him; she suspected the
father had sexually abused B. one year ago.
She said she took B. to the doctor but the doctor found nothing wrong,
and the father said he had never done anything to B., but E. did not believe
him. One week earlier, the father had
asked B. if she wanted to spend the night at the father’s house. B. told E. (in Spanish) “I don’t want to
mommy because then it will hurt.â€
name="_ftnref1" title="">[1]
A social worker and police officer
interviewed E. She said B.’s biological
father (Antonio S.) had moved to Texas
before her birth; she knew her stepfather (Jose A.) as her father, and his name
was on her birth certificate.
name="_ftnref2" title="">[2] E. said she was home with B. in the winter of
2008 when B. said, “Mama me duele†(Mom, it hurts). When she asked B. where it hurt, B. said, “La
colita†(my bottom). E. asked why, and
B. answered, “My papi me pico y me dolio†(my dad poked me and it hurt). E. confronted Jose who was sleeping or pretending
to sleep in the next room, but he denied doing anything. She said she took B. to a doctor who said he
found no evidence of abuse and perhaps Jose had hurt her while changing her
diaper. E. said she did not contact
police because she wanted to believe the doctor but continued to feel uncomfortable
and the thought something might have happened to B. made her feel
horrible.
E. acknowledged using crystal
methamphetamine. She said the last time
she used was about three years ago and she used for about a year. She started
using cocaine about six years ago and used it “on weekends when she would
drink.†She admitted she had snorted “a
little bit†of cocaine the day before the interview but said (in Spanish), “I
promise you that I am not going to use anymore.
I don’t want to lose my child.â€
The social worker told E. her substance abuse was “a big concern.†E. said she understood but was not addicted
and could stop. She denied having any
mental health issues or suicidal thoughts.
The social worker reported E.’s home
was untidy, with pots and pans on the stove with what appeared to be food from
the previous day and bags of clothing and clothing scattered throughout the
home. E. said she had just moved in two
weeks before and had not had the chance to organize. She signed a safety plan, agreeing to
complete on-demand drug and alcohol testing and to be assessed for substance
abuse and mental health issues as well as promising to clean up by the next
visit.
B. initially denied her father had
ever hurt her but using a doll indicated he had touched her inside her
“tamalito†(vagina) and on her “colita†(bottom) and said it did hurt her and
she was afraid of him. She was not
afraid of E. and said E. had not seen her father touch her. A couple of days later, B. underwent a
forensic exam but the examiner was unable to confirm or rule out sexual
abuse. B. was noted to have “poor
hygiene,†and the social worker spoke with E. about the importance of bathing
B. at least every other day. The
examiner described E. as “alert†but “giddy, child-like, with questionable
judgment,†and “strange.†The examiner
commented, “Please continue to monitor this mo[ther] and child.†Six days after the initial interview, E.
tested negative for illegal drugs.
After meeting with E. and B., the
doctor who was conducting a mental health assessment intended to refer E. for
supportive services and to refer B. for weekly visits by an outside agency
because the process was “long and involved†for a child of B.’s age. The following month, however, E. told the
agency she was not interested in receiving services. When the social worker inquired, E. told the
social worker the agency was rude to her.
The social worker asked if E. would return for the intake appointment if
the social worker spoke with the agency, and E. was willing but said she did
not want anyone to be disrespectful to her or B.
On June 3, the Department received a
second referral. A woman (E.) had gone
to the Sacred Heart Catholic Church in Compton and said “duendes†(elves) were
trying to kill her and the little girl with her (B.). E. asked the people at the church to light
two candles for the child and “fled the scene†in a black truck, leaving B.
behind. E. reportedly told church staff
she was “no longer able to care for her daughter.†As church staff approached, they saw melted
candle wax all over the truck’s interior.
When the social worker spoke with
B., she was not wearing shoes and her feet were dirty. She said her mother had her shoes and had
left her at the church. When she and E.
woke up in the morning, B. said, her mother told her “monitosâ€â€”“doll[-]like
creaturesâ€â€”were in the home and they wanted to touch B.’s “behind/bottom.†B. did not see them. She had not had any breakfast.
E. was located and arrested for
and being under the influence of a controlled substance. Her home was found to be “substandard,
cluttered, filthy and infested with cockroaches.†E. was wearing a “see-though tank top†and a
dirty skirt and said she had not showered for days. She admitted smoking methamphetamine the
night before, adding that the devil wanted to take her child away from
her. She told officers she used
methamphetamine on a daily basis to fight the devil and said she had abandoned
her child to purchase methamphetamine.
She was described as displaying objective signs of being under the
influence of methamphetamines; she was paranoid, fidgeting, sweating, her pulse
was elevated and her pupils were dilated.
When the social worker spoke with E.
in jail, she was disheveled, disoriented and crying. She told the social worker, “I never thought
gnomes existed, but they do.†For the
past week, she said, she had been fighting with three gnomes who wanted to take
her child to the devil. “Nobody believes
me.†She said, “I feel like they make
love to me and try to make love to my child too.†She said she had tried to stay up all night
to ensure they did not touch B. The
social worker asked why E. had not told her any of this as they had spoken on
June 2 (the day before E. left B. at the church). E. said she was planning to tell everything
once she got rid of the gnomes and everything was back to normal. Asked why she
didn’t take B. to the Department office instead of the church, E. said the
gnomes couldn’t get her there. The
gnomes told her they could get to B. wherever E. took her and they were going
to kill her. She got on her knees and
asked a nun at the church to go with her to fight the devil. “I did it all for my child!†She said she had used methamphetamines
because she “needed the strength to deal with everything.†She said she fought the devil with prayer and
candles.
On June 8, the Department filed a
petition on B.’s behalf, alleging E. had abandoned her at the church without
making any plans for her ongoing care and supervision, and E. was a current
user of methamphetamines with mental and emotional problems, including auditory
and visual hallucinations and delusions.
In addition, the Department alleged, B.’s father Jesus had sexually abused
her and failed to provide for her.
(Welf. & Inst. Code, § 300, subds. (b), (d) & (g) [all further
undesignated statutory references are to the Welfare and Institutions Code].)
At the detention hearing, the
dependency court found a prima facie case to detain B., ordering supervised
visits for E. and no visitation for B.’s father pending further order.
According to the Department’s
jurisdiction and disposition report, as of July 6, E. had seen a clinician from
the Department of Mental Health and was no longer hearing voices or seeing
gnomes. However, E. said she still
believed everything she had seen and heard was real. She admitted she had used methamphetamines
for many years before B. was born and had started using again two weeks
earlier. B. said, “I don’t want to go
with my mom because she hits me,†and “[her foster mother] takes care of
me.†According to the foster mother, B.
often reacted with fear when she felt she had done something wrong and would
often ask, “Are you going to hit me?â€
On August 6, a dependency
investigator received a call from a woman who identified herself as E. and said
she had been released from jail and deported to Mexico. When the investigator asked for her contact
information, the caller became irate, said, “You are trying to take my daughter
from me,†and hung up. A few days later,
a social worker received a call from a woman who identified herself as E. and
provided an address in Mexico. She said
she wanted to reunify with her daughter and was in the process of obtaining a
permit to return to the
States to be with her daughter. The
Department mailed notice of the next court hearing to the address provided in
Mexico.
In September, the social worker
reported she had received a phone call from E. saying she was living with her
sister in Mexico and needed to comply with court orders for drug testing,
substance abuse group, psychiatric evaluation, individual counseling and parenting
classes. She said she was currently
participating in a drug rehab group every day and was scheduled for drug
testing and a psychiatric evaluation.
She had first names of social workers and an incomplete telephone number
for them. She said she had spoken with
her attorney and interpreter and would comply with the court’s minute order and
wanted B. to come to Mexico with her. She agreed to provide documentation from
her service providers. A Mr. Lopez
Ramirez said E. was attending group meetings every day and said he would
provide a letter once E. had been in the program for a period of time. He said she had started September 1.
At the
dependency court sustained the allegations relating to E.’s abandonment of B.
at the church, her drug use and mental and emotional problems; the court
sustained the allegation of sexual abuse but deleted the identification of her
stepfather as the perpetrator but sustained the allegation he had failed to
provide for her. Jose was deemed B.’s
presumed father.
At the disposition hearing two weeks
later, the dependency court declared B. a dependent child and removed her from
her parents’ physical custody, with the Department ordered to provide
reunification services to both parents.
The court ordered E. to attend a drug rehabilitation program with random
drug testing, individual counseling and parenting classes. In addition, E. was ordered to have a mental
health evaluation and comply with orders for any prescribed medication. Jose
was ordered to attend parenting classes and conjoint counseling with B.
As of the six-month review hearing
in May 2011, the Department reported B.e remained placed with a non-relative
extended family member with whom she shared a close bond. B. called her caregivers “Mom†and “Dad†and
referred to her mother as “Blanca.†The
social worker expressed concern that B. sometimes behaved in a “flirty mannerâ€
with adult males inappropriate for her age, would touch Jose’s chest area
during visits and he would not redirect her.
She was being assessed for therapy.
She wanted to remain in her caregiver’s home.
E. was living in Mexico and did not
visit but would call every afternoon.
According to documentation forwarded to the Department from providers in
Mexico, E. had been enrolled in substance abuse treatment since September 22,
2010. She had started therapy with a
psychologist as well as parenting class in October and the Department was in
the process of verifying her enrollment.
She had a negative drug test for April 2011 and had participated in
Alcoholics Anonymous that month as well.
The Department recommended continued reunification services.
At the continued hearing on June 20, the
Department reported contact with a social worker in Mexico helping E. with her
services. E. was reportedly
participating in therapy, parenting classes and a substance abuse program
including a twelve-step program and drug testing. She was also receiving mental health services
on a monthly basis for medication. Her
treating psychologist had not yet provided further information, but the social
worker advised the court such information would be provided upon receipt. The social worker requested that E. and her
home be assessed by the social welfare agency DIF (Desarrollo Integral del la
Familia) “in order for the Department to make a proper recommendation for B.’s
placement.†E.’s social worker in Mexico
said she would request the assessment from DIF and provide the Department with
additional information upon receipt. The
dependency court stated, “All right. The
court is going to order an ICPC.†On
July 12, the court signed an order stating:
“Department to initiate an international ICPC to assist in assessing . .
. E. . . . for return of B. . . . . The
mother’s home is in . . . Mexico.â€
On July 29, the Department reported
receipt of a letter from E.’s mental health provider indicating she was
observed to be “well aware of time, persons, her whereabouts, her vocabulary,
her logic and is coherent,†she was participating in parenting education in a
positive manner and she had a negative drug test in June. She continued to receive mental health,
psychological and social services, including orientation, medical attention and
psychiatric services. The International
ICPC unit reported that the Department required the addition of the following
information to the court’s minute order:
“[The Department] to initiate an international home study request on E. . . . who is the mother of minor B. . . .
who lives in . . . Mexico.†(Italics
added.) The Department requested
inclusion of this information in the court’s minute order.
Meanwhile, the foster family had
told the social worker E. was calling them “constantly†and “on several
occasions . . . threatened to have [B.] removed from their home.†E. reportedly called the foster father at
work when he could not answer the phone; although she was aware of his working
hours, she continued to call at inappropriate times. She also called other family members in an
effort to speak with B. and “spoke in a very negative manner†when she could
not reach the foster parents, and they said they would not allow her to
continue to harass them.
B. continued to speak with E. on the
phone, but did not want to speak every day, especially if she was playing with
friends. According to the foster mother, when B. wanted to go play, she would
find a way to end the conversation, such as pushing buttons on the phone,
dropping it or leaving it on the couch. The foster mother said she did not keep
B. from speaking with E., but B. was only five and did not have much to
say. The Department recommended
continued family reunification services.
On July 29, at the contested hearing
pursuant to section 366.21, subdivision (e), E.’s counsel asked the dependency
court to order B.’s return to E., arguing E. was in full compliance with the
case plan. If the court did not order
B.’s return, she requested “a progress hearing with an update on the DIF
assessment.†B.’s attorney agreed with
the Department’s recommendation for extended reunification services. Counsel for the Department noted E. had not
had contact other than telephone calls because she lived in Mexico. “[A]lthough the Department has been in contact
with DIF, the Mexican counterpart to the [Department], they don’t have a report
on her home environment and whether that’s a safe environment for her. I had requested an international ICPC. I’d ask that we get a minute order today, a
signed minute order, so we can move that process forward.â€
The dependency court found continued
jurisdiction was necessary as conditions which justified the court’s
jurisdiction continued to exist. The
court found by a preponderance of the evidence that B.’s return to her parents
would create a substantial risk of detriment to B.’s safety, ordering continued
reunification services and finding a substantial probability B. would be
returned by the 12-month date in November.
Although she appeared to be in compliance with her case plan, the court
noted E. had apparently drug tested only once.
“For appellate purposes, I would indicate that with respect to return to
mother, the court’s unwilling to do so at this time because I don’t have DIF
information.†The court also expressed
concern about the phone calls “with respect to B.’s safety given mother’s
mental health issues.†“The court will
sign an international home study†using the language specified in the
Department’s report. A progress hearing
was scheduled for September 6, 2011, “to update the court on the status of the
international ICPC.â€
On September 19, 2011, E. filed
notice of her appeal from the dependency court’s July 29 orders.
According to E., insufficient
evidence supported the dependency court’s substantial risk of detriment
finding. We disagree.
In citing to David B. v. Superior Court (2004) 123 Cal.App.4th 768, a case in
which the Department had never advised the father he would have to move out of
his sister’s home in order to regain custody of his daughter, and asserting she
is “[j]ust like David,†E. minimizes the seriousness of the circumstances
leading to B.’s detention in this case.
Although it appeared E. was in compliance with her case plan and was
participating in services, there was limited information available; the
information that was available caused the court concern in light of E.’s past
mental health concerns (and minimal recent drug testing). Contrary to E.’s characterization, the
Department requested and the court’s order contemplated DIF assessment of
environment. As E. concedes, the notion
of risk of detriment “depends on the context of the inquiry.†(In re
C.C. (2009) 172 Cal.App.4th 1481, 1490.)
Given the dependency court’s observation of current concerns in light of
E.’s admitted history of substance abuse and relapse as well as recent mental
health issues, the dependency court’s order was supported by substantial
evidence.
E. also says the Department did not
provide reasonable services to overcome the problems leading to B.’s detention
if her phone calls and her home justified the dependency court’s detriment
finding. As we have explained, E. has
mischaracterized the dependency court’s concerns in the context of the issues
originally leading to B.’s detention, including E.’s methamphetamine use,
hallucinations and delusions, abandonment of her daughter and mental health
concerns (with her continued insistence on the existence of gnomes thereafter). The court’s concern was not for E.’s home in
the same sense at issue in David S. v.
Superior Court, supra, 123 Cal.App.4th 786, but rather with E.’s progress
in addressing her substance abuse and mental health issues in the context of
evaluating B.’s safe return to her mother’s care. On this record, we find no error.
Finally, E. says it was reversible
error for the dependency court to order an ICPC because she is B.’s
parent. In a supplemental brief, she
added the argument it was error to order an ICPC for a parent living in
Mexico. It is clear from the record
that, although the court was imprecise in its use of the term ICPC, it was
adopting the Department’s recommendation for an assessment of E. and her home
through DIF in Mexico as the court
attempted to clarify in its orders. (See
In re Sabrina H. (2007) 149
Cal.App.4th 1403, 1421 [“utilization of DIF services for dependent children
placed in Mexico is well-establishedâ€].)
We find no error in this regard.
DISPOSITION
The order is affirmed.
WOODS,
Acting P. J.
We concur:
ZELON, J. JACKSON,
J.
name="_ftn1" title="">
[1] Throughout
the reports, B.’s and E.’s words are quoted in Spanish with an English
translation provided in parentheses.
name="_ftn2" title="">[2] The
Department’s reports identify B.’s stepfather as Jose A. but there are also
references to Jesus A. B.’s stepfather
is not a party to this appeal.
