In re
Christina A.
Filed
2/24/12 In re Christina A. 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 CHRISTINA J., et al., Persons Coming Under the
Juvenile Court Law.
B234175
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent,
v.
BARBARA J.,
Defendant
and Appellant.
(Los
Angeles County
Super. Ct. No. CK38007)
APPEAL from a judgment and
dispositional order of the Superior Court of
County, Robert L. Stevenson, Temporary Judge.
(Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part
and reversed in part.
Mitchell Keiter, under appointment
by the Court of Appeal, for Defendant and Appellant.
Andrea
Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and
Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
___________________________________________
Appellant Barbara J. (mother), seeks
to reverse the trial court’s jurisdictional finding that her daughter,
Christina J. (Christina), is a dependent of the court and the trial court’s
dispositional order removing custody of Christina from mother.
AND PROCEDURAL BACKGROUND
name="_ftnref1" title="">[1]
Mother
has three children: Terrance B.
name="_ftnref2" title="">[2],
Bobby A. (Bobby) (born in August 1993), and Christina (born in January
1998).
In
early April of 2011, referral was made to the
(DCFS) regarding physical abuse of Christina by mother. The reporter stated that Christina explained
that “she does not want to live with [mother] anymore;” “[m]other has been
beating her[;] [t]he last incident was yesterday (04/04/11); mother hit
Christina with a belt on the right arm and leg
[because] . . . mother thought Christina [] ditched
school[;] [and t]his morning (04/05/11), mother threatened to hit her with
a shoe, because Christina was looking for her report card in mother’s
bag[;] . . . mother threatens to hit her everyday and she
gets hit every other day.” Christina
also provided the same information to the family’s residential case manager,
Deirdre Anderson, who was interviewed by DCFS.
Christina’s story was consistent when she was interviewed by DCFS as
well and the DCFS social worker observed bruises on Christina’s right arm,
buttocks and thigh, corroborating Christina’s story. However, Christina later recanted these
statements in her testimony before the trial court at the May 24, 2011
adjudication and disposition hearing.
In
addition to allegations of physical abuse,
the reporter stated that Christina also suspects mother of “using crack cocaine
every night in the bedroom or the bathroom,” that mother drinks alcohol and
that there are alcoholic beverages in the refrigerator of their home. When interviewed by the DCFS social worker,
Christina stated that approximately three months prior she found a “glass crack
pipe in her mother’s drawer, [describing the object as] a glass cylinder, with
a mouth piece and . . . dirty with drug residue on the
other end.” However, Christina stated there
were no drugs in the object. Christina
stated that when she asked mother about the object, mother denied knowing what
it was and stated she’d throw it away.
Additionally, DCFS reported that “Christina stated she thought her
mother was using crack cocaine every night in the bathroom or her bedroom with
her boyfriend, Tony [G.] . . . [and that] there had been
occasions when she either knocked on mother’s bedroom door or bathroom door,
only to have mother or Mr. [G.] open the door looking ‘jumpy’ and ‘sweaty.’ [And, that] on these occasions there was
smoke in the bedroom or bathroom and the smoke did not smell of tobacco.” Christina also recanted these statements in
her testimony before the trial court, however.
Based
on the foregoing, on April 8, 2011, DCFS filed a Welfare and Institutions Code
section 300
title="">[3]
petition alleging, inter alia
name="_ftnref4" title="">[4],
the following: “a-1 [¶] On 4/4/11, the
children, Bobby . . . and
Christina[’s] . . . mother, . . . physically
abused the child, Christina, by striking the child’s right arm and leg with a
belt. On prior occasions, the mother
struck the child. Such physical abuse
was excessive and caused the child unreasonable pain and suffering. The child is afraid of the mother and refuses
to remain in the mother’s home and care due to the mother’s ongoing physical
abuse of the child. The physical abuse
of the child by the mother endangers the child’s physical health and safety and
places the child and the child’s sibling, Bobby, at risk of physical harm,
damage, danger and physical abuse. . . . [¶] b-2
[¶] The children,
Bobby . . . and Christina[’s] . . . mother . . . has
a thirteen year history of substance abuse including cocaine, marijuana and
alcohol and is a current abuser of illicit drugs and alcohol, which renders the
mother incapable of providing the children with regular care and
supervision. In 2011 and on prior
occasions, the mother possessed and used and was influence [sic] of illicit
drugs while the children were in the mother’s care and supervision. The mother possessed a drug pipe in the
children’s home within access of the child Christina. The mother resumed the substance abuse after
the mother was ordered by the Juvenile Court to regularly participate in a
substance abuse rehabilitation program.
The children are prior dependents of the Juvenile Court due to the
mother’s substance abuse. The mother’s
abuse of illicit drugs and alcohol endangers the children’s physical health and
safety, creates a detrimental home environment and places the children at risk
of physical harm and damage.” The
section 300 petition was dismissed with respect to Bobby on May 10,
2011. DCFS detained Christina in foster
care.
As
noted above in the petition’s allegations, DCFS was previously involved with
this family. However, after each such
involvement, the case was closed with the children being returned to mother’s
custody.
Mother
denied the allegations in the most recent petition. At DCFS’s request, mother took a drug screen
on April 11, 2011, which showed positive results for opiates, specifically
morphine and codeine. Notably, the drug
test was negative for cannabinoids and cocaine metabolites. Further, mother stated that she was taking
prescription Tylenol No. 3 (which contains codeine)
for her mid-back injury involving a lumbar disk disorder. Although Christina alleged that mother was
abusing alcohol, the test was negative for urine alcohol.
Bobby
denied that mother used drugs or physically abused Christina.
At
the adjudication and dispositional hearing on May 24, 2011, the trial court
found Christina’s initial statements regarding the physical abuse and mother’s
usage of drugs to be more credible than her live testimony before the court,
during which she recanted all of the allegations, noting that Christina had a motive
(wanting to leave foster care) to change her story. The court stated, “It’s like the boyfriend or
the person that she is seeing that Christina is saying that she thinks you are
using crack every night in the bedroom or bathroom, drinking; that there was
this pipe, but it was in your drawer and has residue on the pipe. There was nothing in it, but there was white[
residue in the pipe. There is this
letter[
that was written by Christina that she acknowledged about her mother, I think,
smoking some kind of drugs. [¶] So I
think that information, I think I have to give more weight to. I think Christina obviously wants to go home,
and I think she has good reason to try to indicate to the court that her mother
doesn’t use drugs and her mother didn’t hit her with a belt, but I think her
previous statements are more consistent with what occurred, that she was hit by
a belt. This is not the first
time.” The trial court sustained the
petition with respect to the allegations in counts a‑1 and b-2,
found Christina to be a child described under section 300 and adjudged her to
be a dependent of the court.
With
respect to the trial court’s dispositional order removing Christina from
mother’s custody, the court stated to mother, “I want you to be doing some weekly
on‑demand drug testing, okay. I
don’t want you taking anything that has codeine in it. Anything like that. You have a history, so you are having to
fight that history – a previous history, okay, in this court with
drugs. I want you to show me that you
don’t need to have codeine in your system.
There is, like, extra strength Tylenol.”
The court then ordered mother to return in 60 days with “a letter from
your orthopedist that says you have a lower disk problem.” When mother stated she did not have an
orthopedist, the trial court stated, “X-rays are not very good, as far as
telling you about bulging disks, or, you know, disks that are herniated. You need, generally, to have an MRI to figure
that out. So if you are getting just
codeine from your general practice doctor, I have a problem with
that. You need to get something more
from a specialist or something that says you need to have that.” Mother has not produced a prescription for
Tylenol No. 3 from a specialist. The
trial court found that there is “substantial risk of detriment to return
Christina today to the mother.”
Mother
filed a notice of appeal on June 8, 2011.
ON APPEAL
Mother
contends that the evidence does not support the trial court’s jurisdictional
findings that (1) mother physically abused Christina; or (2) mother has
relapsed and is again abusing drugs and alcohol. Mother also contends that the evidence does
not support the trial court’s finding that there is a substantial danger to
Christina’s physical health, safety, protection or physical or emotional
well-being justifying Christina’s removal from mother’s custody.
1. Standard
of Review
The standard of
review for dependency proceedings under section 300 is substantial
evidence. (In re Carrie W. (1978) 78 Cal.App.3d 866, 872.) With respect to our review of a trial court’s
orders under section 361, the clear and convincing standard is for the
edification and guidance of the trial court and is not the appropriate standard
on review. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880.) Instead, we also review such an order under
the substantial evidence standard. (
“When considering
a claim of insufficient evidence on
appeal, we do not reweigh the evidence, but rather determine whether, after
resolving all conflicts favorably to the prevailing party, and according the
prevailing party the benefit of all reasonable inferences, there is substantial
evidence to support the judgment.” (
Cal.4th 454, 465.) “ ‘It
is an elementary . . . principal of law, that when
a verdict is attacked as being unsupported, the power of the appellate
court begins and ends with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted, which will support the conclusion
reached by the [trier of fact].’
[Citation.]” (
(1995) 41 Cal.App.4th 189, 207.) “ ‘Evidence sufficient to support
the court’s finding “must be ‘reasonable in nature, credible, and of solid
value; it must actually be “substantial”
proof of the essentials which the law requires in a particular
case.’ ”
[Citation.] . . . In the presence of
substantial evidence, appellate justices are without the power to reweigh
conflicting evidence and alter a dependency court determination. [Citations.]”
(Constance K. v. Superior
Court (1998) 61 Cal.App.4th 689, 705.)
2. Substantial Evidence Supports the Dependency Court’s
Jurisdictional Finding that Mother Used Inappropriate Discipline
Against Christina and Its Dispositional Order Removing Christina
From Mother’s Custody
Mother contends that the trial court’s findings that mother physically
abused Christina (count a-1) and that continuing custody of Christina by mother
would place Christina at risk of substantial danger to her physical health,
safety, protection, or physical or emotional well-being, was in error as such
findings were not supported by substantial evidence. We disagree.
Section 300,
subdivision (a), provides that the following will cause a child to fall under
the jurisdiction of the court and be adjudged a dependent of such court: “The child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm inflicted
nonaccidentally upon the child by the child’s parent or
guardian. . . . For purposes of this subdivision,
‘serious physical harm’ does not include reasonable and age-appropriate
spanking to the buttocks where there is no evidence of serious physical
injury.”
Section
361, subdivision (c), states in relevant part, “A dependent child may not be
taken from the physical custody of his or her
parents . . . unless the juvenile court finds
of . . . . (1) 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 . . . custody.”
Here, the record
is replete with substantial evidence that mother beat Christina with a belt to
her arm, thigh and buttocks on at least one occasion and threatened to beat her
with a shoe on another. Christina also
had bruises that corroborated her story of abuse with the belt. Additionally, Christina’s initial statements
were that mother threatened to abuse Christina daily and that such abuse
actually occurred every other day.
Christina’s account of these incidents as told to the DCFS social worker
is consistent with what she told two other individuals. The trial court’s finding that Christina has
suffered serious physical harm inflicted non-accidentally by mother is
supported by the record.
Although mother
argues that some of the evidence in the record contradicts this evidence,
including Christina’s own recanting of her earlier statements, when reviewing
the trial court’s findings on appeal, we only look at evidence that supports
the court’s findings and disregard any contrary evidence. (In re
I.W. (2009) 180 Cal.App.4th 1517, 1526.)
Thus, we find mother’s argument to be without merit. The record clearly shows that there was
sufficient evidence on which the trial court based its finding that mother was
not engaging in “reasonable and age-appropriate spanking to the buttocks” of
Christina, that there was evidence of serious physical injury resulting from
her disciplinary tactics and that mother had engaged in similar actions against
Christina on more than one occasion.
Furthermore, the
seriousness of Christina’s injuries and the ongoing nature of the abuse support
the trial court’s finding that substantial danger exists to Christina’s
physical health, safety, protection, or physical or emotional well-being
justifying her removal.
3. Substantial Evidence Does Not Support the Trial Court’s
Jurisdictional Finding that Mother is a Current Abuser of
Drugs and Alcohol Resulting in Mother’s Inability to Provide Regular Care for
Christina
While
“[i]t is true that ‘one does not appeal from a finding; one appeals from
a judgment or from an order that the Legislature has designated as
appealable’ [Citation][,] . . . review of findings is
normally obtained by appeal from the ensuing judgment or order. [Citations.]”
(In re S.B. (2009) 46 Cal.4th
529, 534.) Although the trial court’s
findings regarding the physical abuse of Christina are sufficient for us to
affirm the judgment and the removal order, we will review the trial court’s
remaining findings because the affirming of unsupported allegations in this
case would prejudice mother, making her reunification with Christina more
difficult. (See, e.g.,
Cal.App.4th 1311.)
Mother
contends that the trial court erred in sustaining a finding that she has
relapsed and is again abusing alcohol and drugs (count b-2) because the
evidence does not support such a finding.
Mother also contends that DCFS failed to show that any such usage of
drugs or alcohol has resulted in a detriment to Christina and thus, Christina
should not have been removed from her custody.
We agree in part.
Section
300, subdivision (b), states that the following will cause a child to fall
under the jurisdiction of the court and be adjudged a dependent of such
court: “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 . . . inability of his or her
parent . . . to provide regular care for the child due to
the parent’s . . . substance abuse.”
The
evidence is insufficient to show that mother is currently abusing alcohol and
drugs. For purposes of our review, we
treat all of Christina’s initial statements as true, as found by the trial
court, because we are without the power to reweigh such evidence. However, even taking all such statements as
true, the evidence is not substantial proof of mother’s current abuse of
alcohol or drugs.
Christina
informed DCFS that she suspected mother of using crack cocaine. However, though her suspicion may be real and
her statement truthful, it is not a factual statement that mother actually is
using crack cocaine. Further, in
combination with the undisputed evidence of mother’s negative drug screen for
cocaine metabolites, Christina’s suspicion is not enough to accept as proof
that mother actually is using crack cocaine.
Christina
informed DCFS that she found a “crack pipe” in mother’s dresser.
residue but contained no drugs. Although
mother is a recovering drug addict, the mere possession of a crack pipe without
evidence of possession of drugs and/or actual drug use does not lead to the
inference that mother is currently
abusing drugs. Mother has lived in the
apartment for eight years, during which she relapsed in the past. The pipe may have been a vestige of her
past that she failed to discard. Again,
the undisputed drug screen was negative for cocaine metabolites.
Christina
stated that she occasionally found mother and mother’s boyfriend looking
“jumpy” and “sweaty” upon opening the door to either the bedroom or bathroom
when Christina knocked. She also stated
that there was smoke in the room and it did not smell of tobacco. There are numerous reasons why mother and her
boyfriend may appear a little jumpy and sweaty upon opening the door to find
mother’s thirteen-year old daughter there.
Christina did not state what the non-tobacco smoke smelled like. It is possible that the smoke was incense or
a number of other non-illicit substances.
It cannot reasonably be inferred that mother and her boyfriend were
smoking crack cocaine from these statements without further evidence of such
usage.
The
trial court also relied on Christina’s statement in her letter to her boyfriend
in which she commented about mother’s not caring that Christina was too young
to see her boyfriend when mother is “high or smoking durgs [sic].” The comment includes no further details as to
when, how or where mother is using such drugs.
Without more, it cannot reasonably be inferred that mother is
Finally,
Christina stated that mother drinks alcohol and that there are alcoholic
beverages in the refrigerator. Mother
admitted that she occasionally drank alcoholic beverages. In California, alcoholic beverages can be
legally sold to individuals over the age of 21 years. (Bus. & Prof. Code § 25658.) Mother was born in 1959 and is clearly of
legal age to consume alcoholic beverages.
This evidence is insufficient to establish that mother is abusing
alcohol.
The
only evidence supporting any current drug use by mother is the uncontradicted
drug screen which showed that mother tested positive for opiates. Mother explains that such result is related
to her using Tylenol No. 3 for her back pain.
The occasional use of Tylenol No. 3 for back pain is not sufficient to
show that mother is abusing drugs.
Although mother has yet to produce a prescription, the trial court
unreasonably demanded that mother provide a prescription from an orthopedist
and that a legitimate prescription from a general practitioner was
insufficient.
Even
assuming that mother is currently abusing Tylenol No. 3, DCFS failed to produce
any evidence that mother’s usage is directly linked to serious physical harm or
illness to Christina that results from mother’s inability to provide regular
care for Christina. Although it is true
that mother physically abused Christina, such abuse is not linked to mother’s
ingestion of Tylenol No. 3.
Additionally, the DCFS social worker specifically stated that mother’s
home was “neat and clean,” had “working utilities, appropriate furnishings, and
ample food,” both Bobby and Christina “have their own beds and ample
possessions,” there were no “child safety hazards,” and there were no “signs of
drugs, drug paraphernalia, or alcohol in the home, or refrigerator.” DCFS also reported that “Christina appears to
have been well provided with food, shelter and clothing.” These statements are supported by similar
statements made by Deirdre Anderson, the family’s residential case manager.
The
mere usage of drugs by a parent is not generally, by itself, a sufficient basis
on which a finding of harm or risk of harm can be made without some further
nexus between such usage and the child at issue. (See e.g., In re Alexis E. (2009) 171 Cal.App.4th 438, 453
[“ . . . [W]e have no quarrel with Father’s assertion that
his use of medical marijuana, without
more, cannot support a jurisdiction finding that such use brings the minors
within the jurisdiction of the dependency court, not any more than his use of
the medications prescribed for him by his psychiatrist brings the children
within the jurisdiction of the court.”]; see also, In re David M. (2005) 134 Cal.App.4th 822, 829-830 [The court
held that where the evidence was uncontradicted that the child “was healthy,
well cared for, and loved, and that mother and father were raising him in
a clean, tidy home,” and there was no evidence linking mother’s substance
abuse problems to any actual harm to the child or his sibling, or to a
substantial risk of serious harm, jurisdiction under section 300, subdivision
(b), was unwarranted.].) Here, there is
no evidence in the record linking mother’s usage of Tylenol No. 3 to any harm
to Christina. Therefore, the trial
court’s finding of jurisdiction under section 300, subdivision (b),
is not supported by the record.
Without
an adequate basis for finding jurisdiction of Christina under section 300,
subdivision (b), there is no basis for finding that removal is warranted based
on those same findings. The requirements
of section 361, subdivision (c), are also not met here.
The trial court’s judgment and
dispositional order relating to its findings under section 300,
subdivision (a), are affirmed. The trial
court’s judgment and dispositional order relating to its findings under section
300, subdivision (b) are reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
CROSKEY,
J.
We Concur:
KLEIN, P. J.
KITCHING, J.
name="_ftn1" title="">[1]
and procedural background is drawn from the record, which includes a one-volume
Clerk’s Transcript, a supplemental Clerk’s Transcript and a one-volume
Reporter’s Transcript.
name="_ftn2" title="">[2] Terrance’s
date of birth is not included in the record.
The record shows that Terrance is currently in jail and does not reside
with mother and her two other children.
Terrance is not a party to the Welfare and Institutions Code
section 300 petition filed in this case, nor is he a party to this appeal.
