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In re Gianna D.

In re Gianna D.
29/01/13





In re Gianna D












In re Gianna D.



















Filed 1/10/13 In re Gianna D. CA1/2

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>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



FIRST APPELLATE DISTRICT



DIVISION TWO




>










In re GIANNA D., a Person Coming Under the Juvenile Court Law.







SAN MATEO COUNTY HUMAN SERVICES AGENCY,

Plaintiff and
Respondent,

v.

ANTONIO D. et al.,

Defendants and Appellants












A133845



(San Mateo County

Super. Ct. No. 81672)






On November 17, 2011, at the
conclusion of a combined jurisdictional
and dispositional hearing
, the juvenile court concluded that minor Gianna
D. came within subdivision (b) of Welfare and Institutions Code section 300
(hereafter, subdivision (b)), and declared her a dependent child. Gianna’s parents, Antonio D. and Kristine K.,
appeal from the dispositional order.
Although expressed in differing language in their separate briefs, both
parents argue that the conditions which might
have warranted the initial assertion of jurisdiction had, by the time of the
hearing, been so alleviated, mitigated, and superseded by subsequent events
that they were wholly inadequate basis for a dependency. Although the parents’ contention has some
colorable merit, it is not sufficient to overturn the dependency.

>BACKGROUND

Subdivision (b) provides in pertinent
part: “Any child who
comes within any of the following descriptions is within the jurisdiction of
the juvenile court which may adjudge that person to be a dependent child of the
court: [¶] . . .
[¶] (b) 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 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. . . .”

In the petition filed
by the San Mateo Human Services Agency (Agency) on August 9, 2011,href="#_ftn1" name="_ftnref1" title="">[1]
it was alleged that Gianna came within subdivision (b) for these reasons:

“There is substantial
risk that the child, Gianna [D.], one year of age, will suffer serious physical
harm or illness as a result of the failure or inability of the parents to
adequately supervise and protect or willfully neglect the child or by the
parents inability to provide regular care for the child due to the parents’
substance abuse in that:

“(a) The child, Gianna
[D.] one year old, was left with a caregiver as the mother, Kristine [K.], who
has a criminal history of drug related charges, was arrested on August 6,
2011, for possession of methamphetamine and drug related paraphernalia.

“(b) The child, Gianna
[D.] one year old, was left with a caregiver as the father, Antonio [D.] was
arrested on August 6, 2011, for possession of methamphetamine and drug related
paraphernalia.

“(c) The family home
was found to be unsafe for a small child due to the child having access to drug
paraphernalia. Further, there was
garbage strewn throughout the home and caked on dried remains on the child’s
highchair as well as cigarette butts, foil with remnants of marijuana on it and
Kerosene bottles within reach of the child.”

On August 10, the day
after the petition was filed, and without objection by either of the parents
(Antonio was incarcerated and both he and Kristine were facing criminal charges
following their arrests), Gianna was detained and her legal custody given to
the Agency, which placed her with a relative.

The jurisdictional hearing was
originally set for September 8, but it was continued until November 15. By the time the hearing was held, the court
had received three reports from Agency social worker Laura Macrae. The court was advised that Kristine had a
2004 drunk driving conviction and several subsequent substance related charges
that were dismissed after she successfully completed diversion. Both Kristine and Antonio “had child welfare
history as a minor,” but details could not be obtained from the “closed
files.” The reports further advised the
court of the parents’ uneven progress in attempting to deal with the causes for
Gianna’s entry into the dependency process.

In her initial report (dated
September 6) Ms. Macrae told the court:
“The child is unlikely to be returned until the parents have
successfully participated in drug treatment programs and shown that they are
able to live without the need to use illegal drugs. The mother has given various conflicting
statements to Agency social workers on her drug use, admitting using
methamphetamines on the day of the arrest and then later denying it and
claiming to have smoked marijuana . . . . [¶] The mother has made some positive
steps towards recovery by enrolling in Women’s Recovery Association’s
outpatient program. In addition, she is
on the waiting list for Hillside House, where she could reside with her child . . .
if a place opened up for her in their inpatient program. [¶] Unfortunately, the father has not
appeared for two appointments set for Alcohol and Other Drug . . .
assessments at the Sitike Counseling Center.
The father is not staying at the [Daly City] address with the mother,
and she informed the undersigned on 09/01/2011 that she was not sure where the
father was living, and that he did not have a telephone.”

The second report (dated October 17)
told the court: “The mother and father
. . . are young people, who have had difficulties in their families
of origin. They have strong support from
extended family members and longstanding ties to the San Francisco Bay
Area. Unfortunately, they have a history
of drug abuse, which resulted in the removal of their daughter from their
care. The mother initially was enrolled
on a voluntary basis in an outpatient drug treatment program; however, she
failed to complete it, and left the program on 09/27/2011, saying that she
needed to focus her attention on other things.
It is also very concerning to the undersigned that the mother tested
positive for methamphetamines on 10/13/2011, and also revoked the Agency’s
consent to receive test results from Sitike Counseling Center. She stated that she is still on the waiting
list to enroll in Hillside House, an Inpatient program, where she might be able
to have Gianna placed with her, with the Court’s approval of such a plan. This would be an excellent plan, as Mr. [D.]
and she are still together as a couple and Mr. [D.] is unwilling to participate
in a drug and alcohol assessment, let alone drug treatment. Mr. [D.] is stubbornly refusing to cooperate
with participating in any voluntary services, even though his involvement in these
services would make it much more likely that the Agency would recommend that
the child be returned to his care.”

In her third and final report (dated
November 9) Ms. Macrae brought the court up to date with “additional
information” and her final evaluation and recommendation:

“On 10/21/2011, the father showed up
at a visit . . . without having tested first. The undersigned spoke to him on the phone and
he stated that he ‘revoked’ the Agency and the Court. The undersigned informed him that the orders
from Criminal Court prohibit him from visiting without having tested. He was uncooperative and the undersigned
ended up instructing the grandfather [Mr. W., the step-paternal grandfather
with whom Gianna had been placed] to call 911 if Mr. [D.] refused to
leave. He left the home ‘in a huff,’
according to Mr. [W.]

“The undersigned was concerned about
the effect of this kind of incident on both the child and the caregivers, who
are elderly. As a result, the
undersigned and her supervisor . . . determined that it would be
necessary to have visits at Agency office henceforth, to protect the child and
the caregivers from emotional
harm
. The undersigned informed Ms.
[K.] about this on 10/26/2011, and she stated that she feels that she is ‘being
punished.’ . . .
[¶] . . . [¶]

“On 10/27/2011, the undersigned
received a telephone message from Ms. [K.], in which she stated that she had
been offered a place in Hillside House, a residential treatment facility for
Women’s Recovery Association, the date when she could enter the program was
11/02/2011. Ms. [K.] stated that the
facility would also accept Gianna into the program at a later date
. . . .

“On 11/04/2011, Mr. West informed
the undersigned that Kristine . . . told their daughter Rachel that
she is pregnant, and due to deliver on 01/13/1212 . . . . On 11/07/2011, the undersigned had a
telephone conversation with counselor Bonnie Cardoza of the WRA program [which
administered Hillside House], who stated that it would be alright for Ms. [K.]
to have two children with her in the program, and that this has been done in
the past. As the mother has made good on
her promise to enter the WRA program, and clearly indicated that she would be
thrilled to have her daughter placed there as well, the undersigned is
respectfully recommending that Gianna . . . be released to her
mother's care, while the mother is participating in a residential drug program.

“The undersigned is very concerned
about this young couple’s ability to provide care to two young children under
the age of two years old. The mother
. . . has not been forthcoming with the truth with the undersigned;
she chose not to disclose to the undersigned that she is over six months
pregnant. However, she is actively
pursuing a clean and sober lifestyle by being admitted to the residential
program at the Women’s Recovery Administration; and it appears that the program
has no problem admitting both children to Hillside House. This is a very positive outcome.

“Little is known [about] what the
father intends to do, considering that he has chosen to pursue an idiosyncratic
approach to his legal difficulties.[href="#_ftn2" name="_ftnref2" title="">[2]] It is hoped that he will consider a more
practical approach toward the Court and Agency, and take responsibility for
working towards reunifying with his family.”
Ms. Macrae recommended that Gianna be declared a dependent child and
that she be “returned to care, custody & control of the Mother under the
supervision of Children & Family Services.”


The court began the
November 15 hearing by reciting that both parents were present, and that the
court had received trial briefs from Kristine and the Agency on the issue
whether the conditions for asserting dependency jurisdiction still existed.href="#_ftn3" name="_ftnref3" title="">[3] Without objection, all of Ms. Macrae’s reports
were then received in evidence. Counsel
for the Agency stated it was willing to submit the matter on those reports,
“however, we are making Ms. Macrae available for any cross-examination.” Thereafter, Ms. Macrae was questioned at
length and the hearing continued to November 17.

After hearing continued
argument on November 17, the juvenile court stated its ruling:

“So in this case, the
Court is . . . finding that the child is at substantial risk, that

this
child will suffer serious physical harm or abuse because of the evidence of
ongoing substance abuse problems by both of these parents.

“The Court is very
concerned about father’s attitude toward his substance abuse problem. He appears to be in denial and this also
poses a great substantial risk of harm of Gianna.

“Mother, I want to
commend you on your efforts to be in a substance abuse in-patient program at
this time; but I am aware that this is new and you be struggling with this
addiction for the rest of your life. One
day at a time, one minute at a time, one hour at a time.

“So the record should
reflect, then, that based on the evidence presented and the allegations in the
petition filed with the Court on August 9 of 2011 shall be sustained, b1
subdivisions a, b and c. The child comes
within the description of section 300 . . . .

“The Court finds that
the Department has proved their case for purposes of jurisdiction by a
preponderance of the evidence.”

The court accepted the
Agency’s recommendation and declared Gianna a dependent child and returned her
custody to Kristine.

REVIEW

“Jurisdiction
is appropriate under section 300, subdivision (b) name="SR;5681">where the court finds
‘[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
willful or negligent failure of the parent or guardian to provide the child
with adequate food, clothing, shelter, or medical
treatment. . . .’
. . . [T]hree elements must exist for a jurisdictional
finding under section 300, subdivision (b): ‘(1) neglectful conduct by the parent in one
of the specified forms; (2) causation; and (3) “serious physical harm or
illness” to the minor, or a “substantial risk” of such harm or illness.’ (In re
Rocco M
. (1991) 1 Cal.App.4th 814, 820.)
‘The third element “effectively requires a showing that at the time of
the jurisdiction hearing the child is at substantial risk of serious href="http://www.sandiegohealthdirectory.com/">physical harm in the future
(e.g., evidence showing a substantial risk that past physical harm will
reoccur). [Citations.]” ’ [Citation.]”
(In re J.O. (2009) 178
Cal.App.4th 139, 152.)

Antonio argues that the second and
third allegations against him “are not jurisdictional, as they fail to state a
cause of action” under subdivision (b).
He reasons that “a parent’s arrest, without any allegation of how that
arrest harmed the child—or any child—is insufficient, standing alone, to
support jurisdiction,” and there is no evidence that Gianna “was not well cared
for. . . or in any way harmed by her father’s drug use.” Kristine, who terms herself “a non-offending
parent,” accepts “the fact that Gianna will remain a dependent,” desires to
overturn the findings against her because they “might lead to prejudice at
future review hearings in the current case or in future dependency cases
regarding the child or her unborn sibling.”
Both Antonio and Kristine assert the absence of substantial
evidence. The common thread of the
parents’ arguments is that whatever they did or failed to do because of their
drug use did not cause any actual harm to Gianna, constituted only a single
incident, and the evidence clearly showed that the deleterious condition of the
apartment had been remediated.

At the
outset, two points must be made.

First, any one of the three
jurisdictional findings, if validly made by the juvenile court, will support
the assertion of dependency jurisdiction. (D.M.
v. Superior Court
(2009) 173 Cal.App.4th 1117, 1127; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.)

Second, “a jurisdictional finding good
against one parent is good against both. More accurately, the minor is a
dependent if the actions of either parent bring [the minors] within one of the
statutory definitions of a dependent.
[Citations.] This accords with
the purpose of a dependency proceeding, which is to protect the child, rather
than prosecute the parent.” (>In re Alysha S. (1996) 51 Cal.App.4th
393, 397; accord, In re Alexis H.
(2005) 132 Cal.App.4th 11, 16; In re
Joshua G
. (2005) 129 Cal.App.4th 189, 202.)
Thus, in order to quash the dependency, the parents must persuade us to
overturn

not only the
finding against Kristine, but also the finding against Antonio.href="#_ftn4" name="_ftnref4" title="">[4]

As a matter of pleading, the parents
adopt an overly narrow view of the petition’s allegations. Contrary to Antonio’s view, the petition is
not solely about the arrests of himself and Kristine. Kristine erroneously construes the petition
as “limit[ed] . . . to one day in [her] life.” Nor does the petition hinge on the condition
of the apartment on August 6. The
subject of the petition is “the parents’ substance abuse” putting Gianna at
risk, as evidenced by the events of August 6, when both Antonio and Kristine
were arrested “for possession of methamphetamine,” Kristine having a “history
of drug-related charges.” As for the
assertions in Antonio’s brief that “Merely leaving a child with a caregiver is
not jurisdictional . . . unless there is also an allegation that the
parent knowingly left the child with a dangerous or potentially dangerous
caregiver,” and that “there was no indication that the caregiver with whom the
parents left the child was deficient in any way,” these are a distortion of the
petition and the record.

This was not a situation where
parents decided to get high after depositing their child with someone
else. The Agency was reacting to both
parents consuming drugs and both being arrested, in the child’s presence, and
it was those arrests that necessitated taking Gianna into care. In this situation, the “caregiver” was the
Agency, not someone selected by the parents.
Antonio’s argument that the petition “fail[ed] to state a cause of
action” is without merit.

The parents’ claim that
the juvenile court’s decision is not supported by substantial evidence is to be
evaluated according to well-established principles. “The issue of sufficiency of the evidence in
dependency cases is governed by the same rules that apply to all appeals. If, on the entire record, there is substantial
evidence to support the findings of the juvenile court, we uphold those
findings. [Citation.] We do not pass on the credibility of
witnesses, attempt to resolve conflicts in the evidence or evaluate the weight
of the evidence. Rather, we draw all reasonable
inferences in support of the findings, view the record most favorably to the
juvenile court’s order, and affirm the order even if other evidence supports a
contrary conclusion. [Citation.] The appellant has the burden of showing the
finding or order is not supported by substantial evidence. [Citation.]”
(In re Megan S. (2002) 104
Cal.App.4th 247, 251; accord, In re L.Y.L.
(2002) 101 Cal.App.4th 942, 947.) “[A]n
appellate court does not reassess the credibility of witnesses or reweigh the
evidence. [Citation.] Conflicts in the evidence must be resolved in
favor of the juvenile court’s findings, and the evidence must be viewed in the
light most favorable to the judgment, accepting every reasonable inference that
the court could have drawn from the evidence.
[Citations.] Thus, we must uphold
the juvenile court’s factual findings if there is any substantial evidence,
whether controverted or not, that supports the court's conclusion.” (In re
S.C
. (2006) 138 Cal.App.4th 396, 415.)
Those findings can be express or implied on appeal. (In re
Arturo D
. (2002) 27 Cal.4th 60, 77; In
re S.G
. (2003) 112 Cal.App.4th 1254, 1260; In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1652.)

Solely for purposes of this appeal,
it will be assumed that the third of the allegations was overtaken by
events. There was evidence produced at
the November hearing that, when subsequently inspected—once, three months
before the hearing—conditions in the apartment had improved and no longer
presented the situation as alleged. Still, the impact of this improvement was
lessened by the effect that Kristine was no longer residing there, and had
little prospect of an immediate return.
Gianna, of course, was living elsewhere in care. With respect to Antonio, the condition of the
apartment loses relevance because there is nothing in the record demonstrating
that he desired sole custody of Gianna at that address.

It is true that “ ‘[w]hile evidence of past conduct may be probative of current
conditions, the question under section 300 is whether circumstances >at the
time of the hearing
subject the minor to the defined risk of harm’ ” (>In re Levi H. (2011)
197 Cal.App.4th 1279, 1291, quoting In
re Rocco M
., supra, 1 Cal.App.4th
814, 824), the parents take too narrow a view of dependency jurisdiction. Their focus on the absence of any “actual
harm” is artificial.

“The idea that state authority
can be mobilized only after the fact is untenable. Power is name="SR;2935">not disabled from dealing
with latent risk. The state, having
substantial interests in preventing the consequences caused by a perceived
danger is not helpless to act until that danger has matured into
certainty. Reasonable apprehension
stands as an accepted basis for the exercise of state power. This is evident from decisions licensing
state action to forestall potential or contingent harm. [Citations.]”
(In re
Eric B
. (1987) 189 Cal.App.3d 996,
1003.) This pro-active,
preventive approach reflects that “dependency law in general does not require a
child be actually harmed before the Agency and the courts may intervene.” (In re
Leticia S
. (2001) 92 Cal.App.4th 378, 383, fn. 3.) Still, whatever the nature of the parental
acts or omissions that pose actual or potential harm, “ ‘[t]here must be
some reason to believe [they] may continue in the future.’ ” (In re
Rocco M
., supra, at p. 824.)

Notwithstanding whatever doubts the
juvenile court may have expressed before reaching its decision,href="#_ftn5" name="_ftnref5" title="">[5]
our review of the record shows that, at the time of the hearing, there was
substantial evidence that the parents’ problems might recur. (In re A.J. (2011) 197 Cal.App.4th 1095,
1104; In re Rocco M., >supra, 1
Cal.App.4th 814, 824.)

Kristine’s difficulty in conquering
substance abuse, extending from 2004 to 2011, is well-documented. There was evidence—her own statement in
fact—that on August 6, she had been smoking marijuana, in the baby’s presence, prior to being arrested, this after consuming
methamphetamine outside of Gianna’s presence.
There was also evidence that Antonio had a practice, whenever Kristine
was away, to entertain friends and “get high.”
And Antonio told Ms. Macrae that he likes to “party a lot.” Antonio further admitted to the arresting
officer that he has been a user of methamphetamine for a year, and that he had
smoked methamphetamine while Gianna was in the house on August 6. Whatever their practices,
it is undisputed that both parents were arrested, at the house with Gianna,
while under the influence, and after both admitting smoking marijuana while
Gianna was present.

Commendably, Kristine has acknowledged
her problem and moved to deal with it.
But even completion of a drug program is not
conclusive proof that a parent has overcome addiction. (See In
re
Anthony W. (2001) 87
Cal.App.4th 246, 251.) By
contrast, Antonio has never admitted that he either has a problem or that it
requires a change in his behavior. Since
the dependency was commenced, clean drug tests were required for his visits
with Gianna; Antonio did not participate in all scheduled drug tests. Any progress Kristine might achieve could be
negated by reuniting with Antonio, a prospect feared by Ms. Macrae because
Kristine “is a co-dependent with the father” and a renewal of their
relationship “as he refuses to obtain treatment for his drug addiction would cause
a potential hazard to the child.” Thus,
there is a considerable basis for the juvenile court concluding that “this
child is at substantial risk . . . because both parents have an
ongoing substance abuse problem specifically as it relates to father.” Moreover, at the time of the hearing, both
parents still faced criminal charges
based on their August 6 arrests.

The juvenile court may have been correct
in its assessment that “This is a thin case.”
But it is not, as Kristine and Antonio argue, a deficient case. Gianna’s counsel argued in her trial brief
(see fn. 3, ante) that “current risk
of harm to Gianna exists because of the parents’ unaddressed substance abuse
which caused them to neglect Gianna’s basic need[] . . . to be
supervised by persons not under the influence of illegal drugs which put her at
substantial risk of harm.” If Antonio
sees no need to change his regular use of methamphetamine, and if Kristine (and
Gianna) reunite with him, there would be an obvious risk of a recurrence of the
events of August 6.

As previously mentioned, the question in
dependency cases is whether, at the time of the hearing, there is “ ‘some
reason to believe’ ” that the acts subjecting the minor to actual or potential
harm “ ‘may continue in the future.’ ” (In re
Rocco M
., supra,
1 Cal.App.4th 814, 824.) In light of the foregoing, and whether treated as a matter
of pleading or one of proof, this standard was satisfied.




>

DISPOSITION

The dispositional order is affirmed.





_________________________

Richman,
J.





We concur:





_________________________

Kline, P.J.





_________________________

Haerle, J.







id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">[1] Dates mentioned are to the calendar year 2011 unless otherwise
indicated.

id=ftn2>

href="#_ftnref2"
name="_ftn2" title="">[2] A probable reason for one of the continuances is that Antonio
announced to the court at a hearing held on October 19 that he was relieving
his appointed counsel because “I can represent and handle my own affairs
. . . I can’t leave it to somebody else when I’m dealing with my kid.” When the court inquired if he wished to
represent himself, Antonio told the court that there was another option to
being represented by counsel and self-representation—henceforth “sui juris is
how I’m going to approach this court.”
According to what he knew about this concept, Antonio believed he would
be “exercising sovereign rights” and thus was “not subject to the laws of the
state.” The court held an in camera
hearing and determined that Antonio’s appointed counsel would continue to
represent him. Near the end of the
hearing, the court noted that Antonio was “out of custody now.”

id=ftn3>

href="#_ftnref3"
name="_ftn3" title="">[3] The record on appeal also includes a trial brief by Gianna’s
attorney requesting that the court sustain the allegations of the
petition.

id=ftn4>

href="#_ftnref4"
name="_ftn4" title="">[4] We commend Kristine for acknowledging these principles in her
opening brief.

id=ftn5>

href="#_ftnref5"
name="_ftn5" title="">[5] In her opening brief, Kristine focuses on comments made by the juvenile court at the
hearing questioning whether dependency jurisdiction was sufficient, and then
reproaches the court for having “apparently dismissed the allegations
. . . (a) and (b)” and then “reversed itself” and sustained those
allegations. It is, of course, the final
ruling that counts, and it cannot be impeached or undermined by comments or
questions the court may have previously expressed. (In re Ernesto H. (2004) 125 Cal.App.4th 298,
314-315; Whyte v. Schlage Lock Co.
(2002) 101 Cal.App.4th 1443, 1451.)








Description
On November 17, 2011, at the conclusion of a combined jurisdictional and dispositional hearing, the juvenile court concluded that minor Gianna D. came within subdivision (b) of Welfare and Institutions Code section 300 (hereafter, subdivision (b)), and declared her a dependent child. Gianna’s parents, Antonio D. and Kristine K., appeal from the dispositional order. Although expressed in differing language in their separate briefs, both parents argue that the conditions which might have warranted the initial assertion of jurisdiction had, by the time of the hearing, been so alleviated, mitigated, and superseded by subsequent events that they were wholly inadequate basis for a dependency. Although the parents’ contention has some colorable merit, it is not sufficient to overturn the dependency.
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3/5 based on 1 vote.

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