In re E.D.
Filed 4/24/13 In re E.D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FIFTH APPELLATE DISTRICT
In re E.D. et al., Persons Coming
Under the Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN
SERVICES,
Plaintiff and
Respondent,
v.
N.D.,
Defendant and
Appellant.
F064623
(Super.
Ct. Nos. JD127180, JD127181,
JD127182, & JD127183)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court
of
Mitchell
Keiter, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A.
Goldner, County Counsel,
Jennifer E. Feige, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
Appellant
N.D. is the father of E.D., N.D., Jr., D.D. and N.D., all of whom were removed
from his home by respondent Kern County Department of Human Services in August
2011. He appeals from the juvenile
court’s orders finding dependency jurisdiction over the children and continuing
the children’s removal from his home during the provision of
appeal, In re N.D. (Dec. 19, 2012, F064583)
(nonpub. opn.), in which we affirmed the juvenile court’s dispositional order
regarding the youngest child, N.D. We
will affirm here as well.
FACTUAL AND
PROCEDURAL HISTORIES
The account
that follows is taken mostly from our opinion in In re N.D., supra, F064583, which involved the same facts and
proceedings as this appeal. The scope of
the mother’s appeal was limited to the dispositional order regarding the
youngest child, N.D., but we discussed the record concerning all the children
and all stages of the proceedings.
N.D. is
eight years old. His mother is R.D.
(mother). His father, N.D. (father), has
three other children by J.H.: E.D., who
is 18, N.D., Jr. (Junior), 16, and D.D., 13.
N.D. is mother’s only child.
Father and mother have been married since 2003. J.H. has been convicted of second degree murder
and is serving a term in state prison.
On August 18, 2011, E.D. called the
police from the home of a friend. She
told the police she had had a fight with her stepmother (mother) and had been
kicked out of the house.
Miriam
Orozco, a county social worker, went to the friend’s house the same day and
interviewed E.D. She had a scratch and
some redness on her face. She told
Orozco that the previous Saturday, August 13, she had been watching
television when mother took the remote control away from her and changed the
channel. E.D. and mother argued over
this, and mother slapped E.D. on her face a number of times, pulled her hair,
threw water on her, and hit her neck with a towel. Mother also tried to move a chair while E.D.
was sitting in it. E.D. said she threw
up in the bathroom after the incident.
She did not tell father about the incident and falsely told him N.D. had
made the scratch on her cheek. She said
she feared father would blame her if he found out. On August 17,
2011, N.D. told father about the incident, and father became angry
at E.D., telling her to pack up and leave if she wanted to. She did, and heard father lock the door
behind her. E.D. then walked to the
friend’s house.
E.D. also
told Orozco that father and mother smoked marijuana daily, often in front of
her. E.D. said father had at least five
marijuana plants growing in the back yard.
That July, father made brownies with marijuana in them and gave her and
N.D. each one to eat. Once, before N.D.
was born, father gave E.D. a sandwich made with peanut butter and
marijuana.
Orozco and
police officers next went to the family’s house. Orozco smelled a strong odor of marijuana
emanating from the house even before going inside. Father admitted he had five marijuana plants
in the back yard and showed them to the social worker. They were large, visible, and accessible to
the children; when they were counted, there turned out to be six, not
five. Father said he had been smoking
marijuana for 25 years and that he had grown up with it, as his parents
welcomed it in their home. He said he
and mother usually smoked it in their bedroom or the garage, but he conceded
that his children had seen them smoke it.
Father and mother smoked marijuana in their bedroom every night. Friends of father’s came to the house to smoke
with him, and the children had seen this also.
Father
admitted he made marijuana brownies on the occasion to which E.D. had
referred. He denied, however, that he
had given them to E.D. and N.D. He made
a batch of regular brownies as well, and gave those to the children. He said he told E.D. she was getting one of
the marijuana brownies because she had asked for one. He believed E.D. had once eaten a marijuana
brownie at his parents’ house. Father
confirmed that he had allowed E.D., at her request, to harvest leaves from his
marijuana plants during the last few days.
E.D. liked the way marijuana smelled and looked, he said.
An officer
spoke with Junior. He said his father
once gave him a marijuana brownie to eat.
Father denied this. Junior said
he had seen his father smoke marijuana.
After
initially denying it, father admitted there was marijuana in the house. He allowed the officers to look around, and
they found a quarter ounce on his bed.
Father also confirmed that a social worker had been to the house on a
prior occasion and had told him that being high in the presence of the children
and exposing them to marijuana was unacceptable.
The
children were removed and placed in protective custody the same day, August 18, 2011. The following day, another county social
worker, Kathleen Neuman, interviewed mother, D.D., Junior, and E.D. Mother said E.D. hates her, has an anger
problem, and in 2009 physically assaulted her.
Mother admitted she smoked marijuana, but denied she did so in front of
the children.
D.D. told
Neuman that his father made marijuana brownies in July and offered him
one. D.D. helped water the marijuana
plants. He said his parents both smoke
marijuana three times a day, and he had been aware that they did so for the
last four years, since he was eight.
Junior told
Neuman that father and mother smoke marijuana all day every day, and that he
saw them smoke at least 15 times each month.
He said they smoke in the car on the way to work, and his father smokes
all day during his work as a gardener.
Sometimes father and mother smoked in the car while the children were in
the car. When told of mother’s claim
that she never smoked in front of the children, Junior said, “she’s
crazy.â€
E.D. said
father and mother go to their bedroom every night after dinner to smoke
marijuana. They remain there for the
rest of the evening, leaving E.D. to care for the other children. She again stated that she and N.D. ate
marijuana brownies made by her father in July.
She said she did not know the brownies had marijuana before she ate
one. The marijuana made her “feel like
she was on a roller coaster,†and she did not like it. Her father laughed and said she was “not a
‘drugee.’†E.D. said she cut the leaves
from a marijuana plant at her father’s request.
The
children complained to Neuman about mother.
Junior confirmed E.D.’s statements that mother started the fight with
E.D., that E.D. was trying to avoid a confrontation with mother, and that
mother slapped and poured water on E.D. and dumped E.D. out of a chair. D.D., Junior, and E.D. each felt that mother
was excessively focused on making them keep the house clean. E.D. said mother comes in her bedroom and
dumps out the contents of her drawers if she disapproves of the way they are
arranged, and sometimes removes clothing from her room and throws it away
because she does not like it. E.D.
admitted she hit mother in 2009.
Neuman
spoke with M.K., father’s mother. M.K.
said “her son puts [mother] in front of everyone including his own
children.†When the family was living in
Las Vegas, M.K. paid for them to move back to Bakersfield because she was
concerned about the children. The family
lived with M.K. when they returned, but she moved out because “things with
[mother] were so bad .…â€
Neuman
spoke with father a few days later, on August 22, 2011. Father claimed it was E.D. who was abusing
mother and said E.D. lies, cheats, and steals.
Father also said the marijuana plants had been removed from the yard.
The Kern
County Department of Human Services filed dependency petitions in juvenile court
for all the children on August 22, 2011.
The petitions alleged, based on the marijuana-related facts, that father
failed to protect the children. Based on
the incident between E.D. and mother, the petition for the youngest child,
N.D., alleged that there was a risk of serious physical harm to the child and
that father failed to protect the child from mother. (Welf. & Inst. Code, § 300,
subds. (a), (b).)
name="_ftnref2" title="">[1]
In her
report prepared for the detention hearing, Neuman described the family’s
history of referrals to child welfare agencies in Kern County and in Clark
County, Nevada. There were seven prior
referrals, three of which were substantiated.
A referral received by Kern County on October 31, 2002, was
substantiated against mother for physical abuse of Junior, who was then six
years old.
arm, extending from wrist to elbow. He
had a circular purple bruise on his spine and two bruises extending from the
spine toward the hip. At first, Junior
said he had gotten “a ‘whoopin,’†but then offered several alternative
explanations involving accidents, none of which were consistent with the
injuries. Junior and mother then claimed
that father had inflicted the injuries.
Father admitted that he sometimes hit his children with a belt, but said
he never left marks; after initially saying mother was not responsible, he
later blamed her. The department
concluded that mother had made “increasingly dishonest statements throughout the
investigation†and found she had inflicted the injuries.
The second
substantiated report was received by Kern County on September 28,
2009. E.D., Junior, and D.D. separately
reported “being made to feel unloved and unwanted†by mother. E.D. reported ideas of hurting herself and
said mother called her a bitch. Junior
and D.D. reported dreams involving mother taking the children away and robbing
the house. The department found that
mother had engaged in emotional abuse. A
referral alleging physical abuse by mother was made at the same time, but the
department did not find evidence to support it.
Kern County
received the third substantiated report on May 18, 2011. Social workers went to the family’s home to
investigate after N.D. brought a live bullet to school, saying it came from his
house. The social workers found that the
home smelled strongly of marijuana. The
children were present. Father showed the
social workers a medical marijuana card.
the social workers believed, based on the smell, that marijuana had been smoked
throughout the house. The social workers
interviewed N.D., who now said he found the bullet on the school bus. Father did not allow the social workers to
interview any of the other children. The
department found general neglect by father based on exposing the children to
marijuana smoke. It found failure to
protect on the part of mother.
The
unsubstantiated referrals included three received by authorities in Clark
County, Nevada, each alleging physical abuse of E.D. The county received the referrals on
March 24, 2004, May 1, 2005, and May 26, 2005, when E.D. was 9
and 10 years old. In each instance,
bruises were seen on E.D.’s back, legs, hips, buttocks, or sides. In the first case, father admitted he hit her
with a belt and said it was because he heard her talking about oral sex. Father was “advised not to leave marks or
bruises†and the referral was found unsubstantiated. In the second case, father and mother said
they spanked E.D. because she was “out of control and would not do her
chores.†The referral was found
unsubstantiated and “the family was referred to counseling.†In the third case, E.D. had “a black bruise
on her back approximately the size of a grapefruit,†which was seen by a
teacher, and father admitted he hit her with a belt. Father was warned that he could face criminal
charges if he continued to inflict excessive punishment. Again, however, the referral was found
unsubstantiated because “the family ‘was working on the matters at hand.’â€
Kern County
received a marijuana-related referral on August 16, 2010, that was found
unsubstantiated. The department found
that the house did not smell of marijuana, and that there was no evidence the
parents smoked daily in the presence of the children or used Junior to deliver
marijuana to others. Father said he had
a medical marijuana card and smoked marijuana for pain management. The department concluded that if the parents
were using marijuana, their use did not affect their care of the children. Father was “minimally cooperative†during the
investigation, and the department felt that “concerns remain for this family
due to their Child Protective Services history and the father’s criminal
history.†Father’s criminal history is
discussed below.
There are
indications in Neuman’s report for the detention hearing that, over the course
of the family’s many years of contacts with child welfare authorities, the
children had been taught to lie to protect father and mother. In connection with the referral in the
present case, E.D. told Neuman “she never said anything to CPS because her
parents prepared the children with what to say to avoid further involvement or
investigation.†As already mentioned, in
2002 Junior gave various inconsistent explanations of his bruises in an attempt
to make social workers believe they resulted from an accident. E.D. told Neuman she “is afraid to go home
because she is now telling the truth and is afraid what her parents will do.â€
Neuman’s
detention report included father’s criminal history. He was charged with 16 offenses between 1995
and 2002, some with prior prison term enhancements. In 2002, father pleaded no contest to
possession of more than an ounce of marijuana.
In 1998, he pleaded guilty to driving with a suspended or revoked
license, not wearing a safety belt while driving, driving without auto
insurance, driving an unregistered vehicle, and failure to appear. In 1995, he pleaded no contest to possession
of a controlled substance.
The
detention hearing took place on August 23, 2011. The parents denied the allegations in the
petitions. The court found that a prima
facie showing had been made, based on the allegations in the petitions and the
facts set forth in Neuman’s report, that the children came within
section 300. It found that their
continuance in the parents’ home would be contrary to their welfare and that
reasonable efforts had been made to avoid the need for removal. The children were ordered detained. Visitation was ordered. The parents were ordered to submit to drug
testing. Mother’s counsel said mother
would submit to testing voluntarily.
Neuman
prepared a report for the jurisdiction hearing.
It stated that on August 23, 2011, after the detention hearing,
Neuman again spoke to the children. E.D.
and Junior said they did not want to visit with their father. They also said they heard their father refuse
to submit voluntarily to drug testing.
E.D. told
Neuman that from the ages of 10 to 13, when the family lived in Las Vegas, she
was kept home from school to care for N.D.
She had difficulty with math, reading, and writing when she entered
eighth grade after the family returned to Bakersfield.
Junior said
that, seven years ago, the children were given sandwiches made with peanut butter
and marijuana. E.D., Junior, and D.D.
said their father procured marijuana from a dispensary; the children pointed
the dispensary out as they and Neuman passed it on the way to the foster care
center where the children were staying.
E.D. and Junior had been inside.
D.D. said he always waited outside.
E.D., Junior, and D.D. all said they had delivered marijuana to other
people for their father, packaged in small green containers or zip lock
bags. The three older children said
their father also had used N.D. to make deliveries. For N.D., the marijuana packages were
concealed inside green peppers “so if anyone looked inside the bag it looked
like he was just carrying vegetables.â€
Neuman’s
jurisdiction report included an excerpt from a police report made on
August 18, 2011, by the police officers who went to the house on the day
E.D. contacted the authorities. The
report stated that M.K. (father’s mother) said mother had been hitting and
abusing E.D. for years, and that father knew about it and did not prevent
it. M.K. said father verbally abused
E.D. as well. The report included the
officers’ description of mother’s account of the altercation with E.D. Mother felt that E.D. constantly disrespected
her and undermined her authority. She
confirmed most of the facts E.D. described:
She took the remote control away from E.D., slapped E.D., pulled E.D.’s
hair, threw water on E.D., and hit E.D. with a dish towel. In mother’s version, however, E.D. grabbed
mother’s arm before mother touched E.D., and E.D. had a bad attitude.
Neuman
noted that father had a medical marijuana card, but contrasted the alleged
medical need with the actual role of marijuana in the home: The parents smoked marijuana in front of the
children and exposed them to second-hand marijuana smoke daily; father fed the
children food made with marijuana and used the children to help him cultivate
and distribute marijuana; mother smoked marijuana in the car with the children;
and mother and father left E.D. to care for the other children while mother and
father smoked marijuana in their bedroom.
Mother had not, up to that point, claimed a medical reason for marijuana
use.
Mother
testified at the jurisdiction hearing on October 4, 2011. She testified that E.D. was very disrespectful
and disobedient, gave her dirty looks, and had bad posture. Mother described the fight between her and
E.D. on August 13, 2011, in essentially the same way she had described it
to the police. She added that when she
threw water on E.D., E.D. was charging at her and pushing her against a window
and had to be restrained by the boys.
Mother described another incident, in February 2010, when she argued
with E.D. Mother was holding onto E.D.’s
hands when E.D. got one hand free and hit mother with it.
Mother said
she began smoking marijuana in 2000, when she met father. She smoked recreationally with father and his
parents. Later, she began having muscle
spasms in her leg. In 2009, a doctor
prescribed “some medicine that started with an A,†but it made her feel
nauseated. Marijuana, however, made her
leg feel better. She decided not to take
a second medication her doctor recommended because of side effects about which
she had read. When asked whether she
smoked every day, she began by saying no, but then continued, “Most—sometime
during the week, Monday through Fridays, maybe twice at night, and on the
weekend at night, Friday, Saturday, and Sunday.†In August 2011, after the children were
removed from the house, she obtained a medical recommendation to use
marijuana.
Mother
admitted she smoked marijuana in front of the children when they were with
father’s parents. “When they would visit
or when we were there, it was a social thing where it was around the table in
front of the kids.†She denied smoking
in front of the children in her home except when father’s parents were
present. Mother also admitted that
father’s parents often made baked goods with marijuana and brought them to her
home, but she denied they were left where the children could get them. She admitted that father made brownies with
marijuana in July 2011.
Mother
testified that she and father began growing marijuana in January 2011 and had
been buying it at a dispensary since they removed the plants after the children
were detained. Before that, they got
their marijuana from father’s parents, who grew it in two rooms in their
house. When the children visited
father’s parents, they were shown the marijuana growing in the rooms and had
access to the rooms.
The court
found all the allegations in the petitions true. The children were found to be persons
described by section 300.
For the
disposition hearing, Neuman prepared a report dated October 18, 2011. It stated that the children had been
separated. The two older children, E.D.
and Junior, were together in one foster placement, and the two younger
children, D.D. and N.D., were together in another. The children were reported to be strongly
bonded to one another.
Neuman
prepared an initial case plan for each parent.
The plans required both parents to receive counseling at Haven
Counseling. For father, the counseling
was for failure to protect. For mother,
it was for physical abuse as a perpetrator.
Both parents also were to enroll in substance abuse counseling with the
goal of demonstrating that they could refrain from the use of illegal
substances. Further, the parents were to
enroll in a parent training course designed to improve their parenting skills
and reduce the likelihood of future abuse
or neglect.
A social
worker presented the initial case plans to the parents on September 30,
2011. Both refused to sign the plans on
the ground that the allegations in the petition were not true. In Neuman’s opinion, the parents had made “no
progress in alleviating the circumstances which led to the children’s
removal.†She believed that out-of-home
placement continued to be necessary.
Neuman
prepared a supplemental disposition report dated January 24, 2012. The report stated that a social services
supervisor reviewed the initial case plan with father on October 3,
2011. Father said he would not
participate in the case plan because he and mother were “innocent.†A social worker subsequently reviewed the
initial case plan with the parents each month.
The parents continued to insist that the allegations in the petition
were false. The social worker reported
that they “feel that participating in the initial case plan will only
contribute against them with regards to their innocence.†At the time of the supplemental report, both
parents were still denying the allegations and refusing to participate in any
counseling or submit to drug testing.
Father
“refused to sign an authorization for [E.D.] to take the psychotropic drugs she
needs for her anxiety unless the other children were released to him.†This refusal necessitated separate
dispositional proceedings for E.D. in the juvenile court to enable her to
receive her medication without father’s consent. E.D. and Junior continued to refuse to visit
with the parents. E.D. and Junior had
been moved to separate placements.
The
disposition hearing for the other three children took place on March 2,
2012. Counsel for mother explained that
the parents were seeking the return of N.D. and D.D. only. According to counsel, this was because the
parents did not want to make E.D. and Junior come home against their will, “not
because the parents wish to express any aversion towards those children.â€
Mother
called Theresa Thompson-Green to testify.
Thompson-Green was a social worker employed by the foster care agency
and assigned to N.D. and D.D.’s case.
Her job was to observe the children in the foster home and monitor their
visits with the parents.
Thompson-Green
testified that N.D. was having difficulty in the foster home. He was disinclined to do as he was told and
had trouble completing his homework.
Thompson-Green also observed N.D. at school and found he had similar
difficulties there. She found it was
hard to make him sit still, listen to the teacher, and complete his work.
Thompson-Green
observed six to eight visits with the parents.
The visits went well. At the
beginning of each, N.D. ran to his parents, jumped into their arms, and said he
loved them. The two boys would play
basketball or soccer with the parents and then they would have a meal
together. The children were responsive
to the parents’ guidance. The parents
and children behaved appropriately toward each other. Father helped N.D. with his homework, and
N.D. sat still, listened, and appeared to make progress. At the ends of the visits, the children
hugged the parents and said they loved them.
Thompson-Green saw no problems in the relationship between the parents
and the children. The parents never
appeared intoxicated. The children said
they wanted to return to their parents.
Thompson-Green never observed anything that would cause her to believe
the children would be at risk in the parents’ care.
On
cross-examination, Thompson-Green testified that she was not familiar with the
circumstances that had led to the children’s removal. She said it would surprise her to learn that
mother had struck one of the other children, poured water on her and knocked
her out of a chair, or that father fed the children marijuana and used them to
cultivate and transport marijuana. She
did not know whether these facts would change her opinion about whether the
children would be at risk in the parents’ care, but she conceded, after hearing
them, that the parents’ good behavior during the visits could “be
deceiving.†She agreed that N.D.’s poor
behavior with the foster parents might be an example of testing adults to see
how far he could go.
Mother
called Angelique Flores to testify.
Flores was a county social worker.
She was assigned to N.D. and D.D.’s case and her job was to monitor
parental visits and monitor the initial case plan. She testified that the parents were
participating in a portion of the initial case plan. They had enrolled in late January at Haven
Counseling in a program called Family Matters on parenting and child
neglect. They attended twice a
week. They did not enroll in any
counseling before that because they believed they were innocent and because
their attorneys had advised against it. For the same reasons, they were continuing to
refuse to submit to drug testing and had not agreed to be assessed for
substance abuse counseling. They were
continuing to use marijuana and had told Flores they did so for medical
reasons. They told Flores that if the
court ordered them to participate in substance abuse counseling and to submit
to drug testing, they would comply.
Flores
supervised visits every other week for six months. The parents attended every scheduled
visit. She considered the visits to be
successful. The children were always
very happy to see the parents. They were
respectful and obedient. The parents
never appeared intoxicated and never smelled of marijuana.
Flores went
to the family’s house monthly for announced visits. She found the house to be very clean and
well-maintained and saw no safety hazards.
She saw no marijuana.
Flores gave
equivocal testimony when asked her opinion about whether there would be a
substantial risk to the children if they were returned home. Mother’s counsel asked whether Flores had
“seen anything†in the course of her observations that indicated a risk to the
children. Flores said no. Counsel for N.D. asked Flores whether she had
any objection to the children being returned to the parents. Flores said, “Based on my experience with the
parents—and I’m talking about my experience only—I don’t object.†During cross-examination by counsel for the
county, however, Flores gave a different opinion. Counsel asked whether Flores was aware of the
court’s findings that the children were exposed to marijuana smoke, used for
cultivating and transporting marijuana, and fed marijuana. Flores said yes. Counsel then asked whether, in Flores’s
professional opinion, it would be appropriate to return the children to the
parents. Flores said, “Based on what you
are telling me, no.†Father’s counsel
then sought clarification, asking Flores, “So would you say your experience
with the parents isn’t consistent with what was found true [by the
court]?†Flores said yes.
Counsel for the county did a
re-cross and asked whether Flores’s testimony was that, based on her own
observations, she did not see a risk to the children in returning them
home. Flores said yes. Then counsel asked, “You have a different
opinion, however, … based upon all of the sustained facts of the
allegations and the petition. Is that
correct?†Flores said, “That’s
correct.†Mother’s counsel continued to
pursue the matter on re-direct. He
asked, “Based on everything that you know about this case at this time, do you
believe that [D.D.] and [N.D.] would be at—that there’s a substantial risk of
abuse or neglect if the children were returned at this time?†Flores said no.
Counsel for the county did another
re-cross and asked whether, in light of “all of the facts of the petition that
have been sustained, including the fact that the children have been exposed to
secondhand smoke, they have been asked to cultivate and transport,
notwithstanding and including the physical abuse to [E.D.], you think it’s safe
for these children to go home based on your knowledge, skills and experience as
a social worker of the department?â€
Flores answered no. She tried to
clarify her apparently conflicting testimony by saying that “what I know now
from my experience†with the family was “cloud[ed]†by her knowledge of the
court’s prior findings. Counsel also
asked, “Do you have any reason to suspect that [the parents] would stop the
prior behaviors that the court has found places these children at risk without
some counseling?†Flores said no.
D.D.
testified. He had seen marijuana growing
in his back yard and had seen mother smoking it. He said he had never been mistreated by
either parent, had never seen the parents mistreat N.D., and was not afraid of
the parents. He had seen changes in both
parents. Father was not as angry as he
used to be, and D.D. felt father loved him more. Father told him he was sorry about the
situation and would do everything he could to bring D.D. home. Mother’s attitude was not good before, but it
was much better now. D.D. wanted to go
home, and he wanted N.D. to go home.
Counsel for
E.D. and N.D. made offers of proof for them, which were accepted by all
parties. E.D. would have testified that
she had been in contact with N.D. and D.D. through sibling visitations and that
she believed it would be in both boys’ best interest to go home. N.D. would have testified that he wanted to
go home.
Father
testified. He said he found the Family
Matters course at Haven Counseling to be helpful. The class helped him “try to learn empathy
with [his] children.†He looked forward
to going to class. Commenting on D.D.’s
remark that father was less angry, father said, “I feel I’m the same
person. But I do understand exactly what
[D.D.’s] talking about, because, yes, I have toned it down a lot.†Father had stopped growing marijuana at his
house, saying “[i]t’s a danger to my children.â€
He said he would never do it again.
Father
continued to smoke marijuana, however.
He smoked twice a day, consuming about $5 worth of marijuana or three
joints each week. He said, “I do it for
medical reasons only. I am not a
stoner. I smoke medical marijuana.†He said he intended to continue smoking
it.
Father’s
attorney examined him on the question of whether he would obey the court’s
orders if the children were returned to him.
He said he would, but his testimony reflected ambivalence, and he
declared that he would not enroll in substance abuse counseling as he was
convinced he had no marijuana abuse problem.
He also appeared not to understand why he would need counseling on the
issue of failure to protect his children:
“Q. Okay.
Are you willing to comply with any orders of the court in order—if your
children are returned to you, will you comply with any orders of the court?
“A. Yes, I would.
“Q. Would that include abstaining from the use of
marijuana?
“A. It’s my medical—it’s medical. I’m not abusing it. It’s a medical—
“[County
counsel]: Objection. Move to strike.
“[N.D.’s
counsel]: Objection.
“THE
COURT: Sustained.
“BY [father’s counsel]:
“Q. M[y] question is if the court returned your
children and told you not to use marijuana, would you comply with that?
“A. Yes.
“Q. Okay.
“And if
the court returned your children and told you to take substance abuse, would
you comply with that?
“A. No.
Because I don’t do drugs.
“Q. Okay.
“A. I smoke medical marijuana.
“Q. Okay.
“A. I have a doctor’s recommendation for it. I would never tell nobody to stop taking their
pills—their cholesterol pills. I would
never tell anybody to stop taking pain pills.
“[County
counsel]: Objection, your Honor. Narrative.
Move to strike.
“THE
COURT: It’s stricken.
“BY [father’s counsel]:
“Q. If the court returned your children, you
would stop smoking marijuana and you would test?
“A. Yes, I would.
“Q. Okay.
And are you willing to take the failure-to-protect class when you
complete the Family Matters class?
“A. Failure to protect?
“Q. Yes.
“A. Who?
“[County
counsel]: I’m sorry, I didn’t hear that.
“THE
WITNESS: Who did I fail to protect?
“BY [father’s counsel]:
[¶] Q. You understand that the department’s asking
you to take a failure-to-protect class?
“A. No, I didn’t.
“Q. Family—
“A. Okay.
Yes.
“Q. If the court returned your children, would
you be willing to take that class?
“A. Yes.â€
Mother
testified. She said the house still had
marijuana in it, but no marijuana plants were growing there. She said she would do whatever was necessary
to comply with any orders made by the court in returning the children,
including abstaining from marijuana, keeping it out of the house, and finding a
medical alternative to it. She said she
was willing to comply with any orders to attend classes and counseling, but she
was in danger of losing her job as a dental assistant because her employer was
becoming impatient with her frequent need to leave for counseling or
classes. There was a delay in her
beginning the Family Matters class because of a conflict with her work
schedule.
Father’s
counsel argued that N.D. and D.D. should be returned home and family
maintenance should be ordered. She said
the failure-to-protect finding was based only on the altercation between E.D.
and mother, and there was never any risk of abuse to N.D. and D.D. The only risk to them, counsel contended,
arose from the parents’ marijuana use.
Both parents testified that they would stop using marijuana if ordered. Father said he would not participate in
abuse counseling was unnecessary and should not be ordered because father was
not abusing marijuana. The only risk to
the children arose from their exposure to the smoke and from their utilization
by the parents in cultivating the plants.
Because the parents had pledged to stop using and had already stopped
cultivating, these risks had been eliminated.
Counsel for
mother argued that Thompson-Green and Flores did not see any indications of
risk during the visits or in the house.
He said the parents’ marijuana use was medicinal and that, unlike “what
we usually see in drug cases,†the parents were employed and their house was
clean. He argued that the court could
not find by clear and convincing evidence that there would be a substantial
risk to the children if they were returned home, and that there were no
reasonable means by which they could be protected without being kept from the
parents’ custody. Counsel for D.D.
argued that D.D. should be returned with family maintenance services. Counsel for N.D. submitted without
argument.
Counsel for
the county cited In re Alexis E.
(2009) 171 Cal.App.4th 438 for the proposition that the juvenile court had
discretion to order a parent with a medical marijuana card to stop using
marijuana. She asked the court to follow
the department’s recommendation to continue the children’s removal and order
family reunification services. She argued
that the court’s orders should include an order to abstain from marijuana and
to submit to drug testing and substance abuse counseling. She said, “I think there’s every indication
that the risk that the court found at the jurisdictional hearing from the
parents’ use of marijuana has continued unabated since we’ve dragged this disposition
out these several months. [¶] …
[¶] [W]e have the reports. We have all of the information that’s already
in evidence. The lengthy use of
marijuana. Criminal involvement with
marijuana that goes back 25 years for the father and probably ten years by mom,
if that’s fair to say, based on her testimony at jurisdiction.â€
The court
accepted the department’s recommendation.
It stated:
“At this time, the information in the report the court
had received was that, among other things, the father stated he was not going
to participate in the case plan because he was maintaining his innocence. And as I indicated to counsel, what I was
interested in was whether or not the father, in particular, the parents as [a]
whole, were going to participate and comply with the orders of the court as
administered through the Department of Human Services.
“According
to the report, the father’s marijuana use goes back 25 years. He’s—according to the petition, he’s 38 years
old. So it goes back quite a ways. So it predates significantly the so-called
medical marijuana law. And the findings
of the court are that he daily exposed the children to smoke. And we heard from the mother’s—the way she
used it was in her room, but that obviously it was being smoked.
“So the
court at this time finds that the purposes of this whole process to reunite the
family can be achieved by the cooperation of the parents with the orders of
this court, which are designed to reunify the family entirely. But, at this juncture, the court’s going to
order reunification [i.e., continued removal of the children with family
reunification services]. And the court
wants to get this matter to where the children are at home as soon as possible. But they are going to have to show that they
are willing to comply with the orders of the court for the benefit of the
children. That based on the evidence
presented here today, the court is going to follow the recommendations that
are—have been submitted.â€
After making these remarks, the court noted for the record
that “[t]he father just stormed out of here, counsel. That’s exactly what we’re talking
about.â€
The court
found that father and mother had made no progress toward alleviating the causes
of the children’s removal. It found
clear and convincing evidence that there would be a substantial danger to the
physical or emotional well-being of the children if they were returned to the
parents’ custody and that there were no reasonable means of protecting them
from that danger without continued removal from their custody. It ordered father and mother to participate
in counseling for substance abuse and parenting and to submit to random,
unannounced urine testing for drugs. It
ordered father to participate in counseling for failing to protect his children
and it ordered mother to participate in counseling for physical child abuse as
a perpetrator. The court ordered a
review hearing in four months.
DISCUSSION
I. Sufficiency of
evidence supporting jurisdictional findings
The father
first argues that the evidence before the court at the jurisdictional hearing
was not sufficient to support the finding that the children were persons
described by section 300. The
petitions alleged that N.D., the youngest child, was a person described by
section 300, subdivisions (a) and (b), and that the other children
were persons described by section 300, subdivision (b). Subdivision (a) states that a child is
within the jurisdiction of the juvenile court if “[t]he 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 the purposes of this
subdivision, a court may find there is a substantial risk of serious future
injury based on the manner in which a less serious injury was inflicted, a
history of repeated inflictions of injuries on the child or the child’s
siblings, or a combination of these and other actions by the parent or guardian
which indicate the child is at risk of serious physical harm. 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.†Subdivision (b) states that a child is
within the jurisdiction of the juvenile court if “[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 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€
“When an
appellant asserts there is insufficient evidence to support the judgment, our
review is circumscribed.
[Citation.] We review the whole
record most favorably to the judgment to determine whether there is substantial
evidence—that is, evidence that is reasonable, credible, and of solid
value—from which a reasonable trier of fact could have made the requisite
finding under the governing standard of proof.â€
(In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
The
evidence before the court at the jurisdictional hearing included the agency’s
report prepared for that hearing, the agency’s report prepared for the
detention hearing, and the mother’s testimony.
From this evidence, the court could reasonably infer that, even if the
parents had legitimate reasons to use marijuana responsibly, in reality they
used it abusively, used it in the car with the children present, routinely
exposed the children to marijuana smoke, fed marijuana to the children, and
used the children to cultivate marijuana.
It also could reasonably infer that the parents had a long history of
physically abusing the children and that the abuse continued up to the time
when the children were detained. This
evidence was more than enough to support the juvenile court’s jurisdictional
findings.
Father
argues that the evidence was insufficient because his marijuana use was not
combined with indications that it was likely to lead to serious physical harm
to the children. He says, “In light of
Father’s allegedly longstanding daily use, if he used marijuana on thousands of
past occasions without any tangible harm to the children, there is absolutely
no basis for inferring such risk in the future.â€
The record
is not consistent with father’s description of his marijuana use as harmless. There was evidence that both parents had
physically abused the children over many years.
The record did not specifically tie this physical abuse to marijuana
intoxication, but the court could reasonably infer a connection, since there
was evidence that the marijuana use was chronic, daily, and continual. The case is similar in this respect to
at pages 452-453, in which the children said the marijuana-abusing father
was dangerous, frightening, and physically abusive to them and to his
girlfriend. The Court of Appeal held
that the evidence was sufficient to support jurisdictional findings under
section 300, subdivision (b).
(Alexis E., supra, at
pp. 440 & fn. 2, 453.)
The court
also could reasonably find that father endangered the children by smoking
marijuana in the car. Father states that
“[i]f it really was true that Father smoked marijuana every day on his way to
work, then he apparently drove safer under the influence of marijuana than most
drivers do without it.†This contention
is absurd. The record does not show that
the father drove safely. It shows that
he smoked marijuana in the car when the children were with him. Assuming he did this while driving—that is,
assuming he did not load the children in the car for no reason and then begin
smoking—his behavior was inherently unsafe for the children.
Father
makes additional arguments that the children’s daily exposure to marijuana
smoke, the feeding of marijuana to the children, and the use of the children in
marijuana cultivation all could not establish a risk of serious physical
harm. He also argues that, although the
petition for N.D. differed from the others in that it alleged physical danger
to him under section 300, subdivision (a), related to mother’s
physical abuse of E.D., there was no specific evidence that mother might harm
N.D. just because she was harming E.D.
We are not persuaded by these additional arguments (see, e.g.,
at p. 452 [mere use of marijuana by parent alone not enough to support
jurisdictional finding, but risk not speculative where father exposed children
to secondhand marijuana smoke]), but we need not address them further. The evidence we have already discussed was
sufficient to support the jurisdictional findings as to all the children under
section 300, subdivision (b).
“When a dependency petition alleges multiple grounds for its assertion
that a minor comes within the dependency court’s jurisdiction, a reviewing
court can affirm the juvenile court’s finding of jurisdiction over the minor if
any one of the statutory bases for jurisdiction that are enumerated in the
petition is supported by substantial evidence.â€
(In re Alexis E., supra, at
p. 451.)
The agency
argues that we should not address father’s argument about the sufficiency of
the evidence in support of the jurisdictional findings because father did not
make an objection based on sufficiency of evidence in the trial court. It is unnecessary to address this contention
since we conclude that the evidence was in fact sufficient. We remind the agency, however, of the
well-established principle that the sufficiency of the evidence to support a
judgment or order is not among the issues that need to be raised in the trial court
in order to be preserved for appeal. (
1126; Tahoe National Bank v. Phillips
(1971) 4 Cal.3d 11, 23, fn. 17; In
re Brian P. (2002) 99 Cal.App.4th 616, 623.)
regarding relitigation of facts established at jurisdiction hearing
At the
disposition hearing, the court excluded certain testimony on the ground that it
related to facts that already had been established at the jurisdiction
hearing. While examining D.D., mother’s
counsel asked for a description of the arrangement of the back yard garden
where the marijuana was growing as it existed before the children were
detained. The court interrupted:
“THE
COURT: Counsel, the court’s already made
findings. I am not going to entertain
relitigating those issues. We’re here
for a disposition. [¶] … [¶]
“[MOTHER’S
COUNSEL]: Your Honor, we’re going to the
issue of standard of clear and convincing evidence that these children would be
at risk, and I’m just asking so that we have clarification what the element of
risk would have been.
“THE
COURT: If you want to ask questions
about what’s going on at the home now if he’s aware of that, you can ask
him.â€
Shortly
afterward, mother’s counsel asked D.D. about the places and times he saw mother
using marijuana before the children were detained. Counsel for the agency objected, saying the
risk to the children shown by the parents’ behavior before the children were
detained had already been litigated. The
court agreed:
“At this point, counsel, the issue again is
disposition. So if you have something
that you want to present regarding disposition, you may. But I am not going to get into areas that have
already been adjudicated by this court where there’s findings that have been
made. We’re not gonna reopen any areas
that have already been adjudicated.â€
Later,
father’s counsel began questioning him about the amount and frequency of his
marijuana use and his reasons for using it.
Counsel for the agency objected.
The court then had this exchange with father’s counsel:
“THE
COURT: Well, counsel, there’s been no
dispute that he uses marijuana regularly.
That’s already been found to be true.
“[FATHER’S
COUNSEL]: Well, what is regularly?
“THE
COURT: Well, counsel, I am not—
“[FATHER’S
COUNSEL]: That’s why—I mean, I’m just
trying to get all the information before the court—
“THE
COURT: Well, counsel, we’ve already had
the information presented to us.
“[FATHER’S
COUNSEL]: Well, actually, you haven’t
had that presented to you.
“THE
COURT: Well, counsel, the court’s made
findings. Jurisdiction—the court has
found jurisdiction in this case. The
matter is disposition. So—
“[FATHER’S
COUNSEL]: And—
“THE
COURT: If you want to ask him questions
about his willingness to comply if the court orders him to do certain things,
you may do that. But I don’t need to get
into why he’s here. We know why he’s
here. There’s allegations made. The court’s made findings. And now the question is how’s the best way to
handle this so that the family can be reunified and the case can be terminated
at some point.
“[FATHER’S
COUNSEL]: Well, that’s where I’m trying
to go, your Honor.
“THE
COURT: All right.
“[FATHER’S
COUNSEL]: So you are not interested in
why he has a medical marijuana card, then?
Is that what you are saying?
“THE
COURT: At this time counsel, if you have
a question you want to ask him. I’m not
the one that’s here being questioned. He
is. He’s the witness.â€
Father’s counsel then asked father why he had a medical
marijuana card. The agency’s relevance
objection was sustained.
Father now
argues that the court erred in excluding additional evidence about his use and
cultivation of marijuana, mother’s use of marijuana, and the condition of the
garden. He argues that the
jurisdictional findings on those issues should have “informed but not
controlled disposition.†He points out
that, although the standard of proof at the jurisdictional stage is a
preponderance of the evidence, at the dispositional stage it is clear and
convincing evidence.
Because of
the different standards of proof, father is correct when he says that, in
theory, findings about marijuana use that are sufficient to establish a risk of
harm for purposes of jurisdiction could be insufficient for purposes of
continuing the children’s removal at disposition. That is, evidence about marijuana use that
showed, by a preponderance of the evidence, enough risk to establish that the
children were persons described by section 300, still might not show
enough risk to establish by clear and convincing evidence that the children
could not be returned home safely. Yet
father and mother proffered nothing at trial and describe nothing in this
appeal that would have made a difference under the circumstances of this
case. The court could reasonably have
found that there was clear and convincing evidence of substantial risk based on
the marijuana facts as presented at the jurisdictional hearing alone. The court was aware of the father’s claims
that he used marijuana moderately and only for medical purposes. There is no likelihood that if the court had
allowed him to reiterate these claims
state additional details about the arrangement of the garden or the parental
behavior he observed, it would have reached a different ultimate conclusion
because of the different standard of proof.
Any error in the reasons the court stated for disallowing the testimony,
therefore, was harmless.
III. Sufficiency of evidence
to support removal at disposition hearing
Father
argues that the evidence presented at the dispositional stage was not
sufficient to support the court’s decision to continue the children’s removal
from the home. To support this decision,
the court was required to make two findings:
(1) that there 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 homeâ€; and (2) that there are “no reasonable means
by which the minor’s physical health can be protected without†removal. (§ 361, subd. (c)(1).) These findings must be supported by clear and
convincing evidence. (§ 361,
subd. (c).) The prior findings at
the jurisdictional stage are “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.â€
(§ 361, subd. (c)(1).)
We conclude
that there was substantial evidence to support the ruling. The evidence included the disposition report
prepared for the department by Neuman and updated by her five weeks before the
hearing. Her report and supplemental
report recommended continued removal based on the parents’ long history of
inappropriate marijuana use and exposure of the children to marijuana, combined
with Neuman’s opinion that the parents had made no progress. Neuman was present at the disposition
hearing; she was not called as a witness by either side, so the court could
reasonably infer that her views had not changed.
Besides the
evidence related to marijuana use, exposure, cultivation and transportation,
Neuman’s reports contained evidence of a long history of physical and emotional
abuse and neglect in the family. There
was evidence that when E.D. was 10 years old, her parents withdrew her from
school so she could supervise the other children and literally beat her black
and blue as well. The inaction of the
authorities in Nevada does not mean the abuse did not take place. Bruises were seen on E.D. by disinterested
third parties, and father admitted to hitting her with a belt. By advising father to stop leaving marks and
warning him of criminal consequences, the authorities implicitly found that he
had inflicted the bruises through excessive discipline. In Kern County, past referrals involving the
three older children for physical abuse, emotional abuse, general neglect, and
failure to protect were found to be substantiated.
Father
emphasizes his and mother’s testimony that they would follow the court’s orders
if the children were returned to them.
There was other evidence, however, on the basis of which the court could
reasonably find that the parents had little understanding of the reasons why
the children were removed and that, therefore, the risks continued. Father said he had learned the importance of
feeling empathy for his children, but two months earlier the department had
needed to pursue separate dispositional proceedings for E.D. because father
refused to give his consent to allow her to receive her anxiety
medication. He said E.D. could not have
the medication until he got the other children back. This might have been intended as a cruel
punishment for E.D.’s courageous decision to contact the authorities in this
case, or it might have been a misguided attempt to bargain with the department,
but in any event, it destroyed any credibility father had in claiming he had
learned empathy. It also supported
Neuman’s opinion that father had made no progress.
Father’s
initial response when asked whether he would participate in counseling for
failure to protect was similarly revealing.
“Who did I fail to protect?†he asked.
Father asked this question during a court proceeding that was the
culmination of years of abuse and neglect:
three substantiated referrals in Bakersfield, two warnings in Las Vegas,
and lifetime daily exposure to secondhand marijuana smoke for all the
children. Father backpedaled after this
and said he would participate in the counseling, but his true state of mind had
already been revealed. Father’s angry
departure from the courtroom could reasonably be interpreted as a further
expression of his sense that he was being persecuted for no reason. Neuman’s opinion that father had made no
progress was still well-supported at the time of the hearing.
Although
father ultimately said he would abstain from marijuana and submit to testing,
the whole of his testimony at the disposition hearing provided an ample basis
for the court to agree with Neuman’s opinion that father had not made progress
on the issue of marijuana use. Although
he had been using marijuana since early adolescence and had for years exhibited
exceptionally poor judgment in exposing his children to marijuana smoke,
feeding his children marijuana, using his children to cultivate and transport
marijuana, and smoking marijuana while driving, he refused to consider the
possibility that he had a substance abuse problem because he now had a medical
recommendation. He declared he would not
submit to an order to participate in substance abuse counseling because he did
not “do drugs.†Even legal drugs can be
abused, and there was substantial evidence that father is a lifetime abuser of
marijuana, even if he currently has a medical condition that can be helped by
marijuana. The court could reasonably
find that father’s testimony demonstrated an ongoing risk arising from his
refusal to acknowledge even the possibility that he has a problem.
Neuman’s
opinion that mother had not made progress on the issue of physical abuse also
continued to be supported at the time of the disposition hearing. At the jurisdiction hearing, mother blamed
E.D. for the altercation that led to the children’s removal. At the disposition hearing, mother said she
would participate in any counseling that was ordered, but, unlike father, she
did not testify that she had gained insight.
Her counsel had argued on her behalf at the jurisdiction hearing that
the physical-abuse issue was insignificant and should be stricken from the
petition. There was no indication at the
disposition hearing that mother’s view of the matter had changed.
For all the
above reasons, we conclude that the juvenile court reasonably could find, by
clear and convincing evidence, that there would be substantial danger to the
children’s physical health, safety, protection, or physical or emotional
well-being if they were returned home.
The finding
that there were no reasonable alternatives to removal also was supported by
substantial evidence. The court’s
de
| Description | Appellant N.D. is the father of E.D., N.D., Jr., D.D. and N.D., all of whom were removed from his home by respondent Kern County Department of Human Services in August 2011. He appeals from the juvenile court’s orders finding dependency jurisdiction over the children and continuing the children’s removal from his home during the provision of reunification services. This appeal is related to the mother’s appeal, In re N.D. (Dec. 19, 2012, F064583) (nonpub. opn.), in which we affirmed the juvenile court’s dispositional order regarding the youngest child, N.D. We will affirm here as well. |
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