Filed 2/1/13 In re Jack D. CA4/1
California
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
>
re Jack D. et al., Persons Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. Z.B., Defendant and Appellant. | D062655 (Super. Ct. No. EJ3154C/D) |
APPEAL from judgments of the Superior Court of
Robert J. Trentacosta, Judge. Affirmed.
Z.B. appeals from judgments of the superior court making
true findings on the Welfare and Institutions Code
section 300, subdivision (b), petitions filed on behalf of her 8-year-old son,
Jack D., and 3-year-old daughter, Jamie S., removing the children from her
custody and denying her reunification services. She contends that there was insufficient
evidence to support the juvenile court's jurisdictional and dispositional
findings and its denial of reunification services to her. We affirm the judgments.
FACTUAL
AND PROCEDURAL BACKGROUND
Z.B.
has a history of alcohol and drug abuse that started when she was young. In 1993, when she was 19, Z.B. pled guilty to
driving under the influence and was ordered to participate in Alcoholics
Anonymous. In 2003, she was arrested for
possession of a controlled substance and drug paraphernalia and ordered to
participate in a drug treatment program.
As
a result of Z.B.'s continued alcohol and substance abuse as an adult, she was
often unable to care for her three oldest children (Jack and his older sisters,
Savannah and Julia), who spent substantial time living with Z.B.'s
relatives. (In re Savannah D. (D061908, Sept. 27, 2012) [nonpub.
opn.], p. 2.)
title="">[2] In addition, numerous dependency referrals
were made on behalf of these children beginning in 2000; one for general
neglect in 2000 relating to Savannah and
one in 2003 relating to Savannah and
Julia were substantiated. Z.B. was also
arrested in 2003 for driving under the influence; Savannah and
Julia were released to the custody of Z.B.'s mother, but no dependency
proceedings were initiated at that time.
In
October 2009, the San Diego Human Health Services Agency (the
Agency) received a report that Z.B. had repeatedly failed to pick up Jack after
school, that Savannah, Julia and Jack were often hungry and unkempt, that
Savannah was often left in charge of her siblings' care and that their home was
filthy and had no electricity or running water.
The following day, Z.B. was arrested after she arrived in an intoxicated
state to pick up Jack at the end of the school day. The Agency filed a section 300 petition on
behalf of Savannah,
Julia, Jack and eight-month-old Jamie, and the court removed the four children
from Z.B.'s custody and placed them with their maternal aunt.
Z.B. initially denied having an
alcohol abuse problem and had difficulty maintaining her sobriety until early
2010, when she began to participate in a residential treatment program and
dependency drug court. After giving
birth to her fourth daughter, Cassidy, in July 2010, Z.B. experienced certain
additional set-backs (including a substantiated referral for general neglect
relating to Cassidy in November 2010), but subsequently made substantial
progress with her case plan.
By
January 2011, Jamie was returned to Z.B. on a 60-day trial basis and Jack began
having weekend overnight visits with Z.B.
Within a few months, Jamie was returned to Z.B.'s custody and the Agency
was planning to return Jack to her custody as well.
In
April 2011, Z.B. took Julia, Jack, Jamie and Cassidy to visit her brother,
Eric, at his home in Orange County. Z.B.'s brother Dustin was living with Eric at
the time, having been recently released from prison. Dustin was subject to a restraining order
that prevented him from coming into contact with Z.B., Savannah, Julia
and Jack as a result of a prior incident of domestic violence between him and
Z.B. Z.B. left the four children
(including Cassidy, who was nine months old) alone in the car for nearly an
hour. During that time, Dustin came out
of the house and pulled Jack from the car, throwing him into the air a couple
of times; Jack later told Z.B. about the incident and she responded that he
should not tell anyone about it. When
confronted by the social worker about the incident, Z.B. initially denied leaving
the children alone "for more than a few seconds," but later asserted
(apparently falsely) that their maternal grandmother was in the car with them;
she also indicated that although she knew Dustin was living with Eric, she had
not expected him to be there at the time of the visit.
In
July 2011, Savannah
disclosed that she had been molested by Eric on numerous occasions between 2005
and 2008, when the family was living with him.
grant Z.B. trial custody of Jack was put on hold for a period of time, although
Jack was ultimately returned to her care in September 2011.
Based
on Z.B.'s successful reunification with Jack and Jamie, the dependency
proceedings relating to them were dismissed in March 2012. (All further relevant dates are in 2012
except as otherwise noted.) Although
Z.B. knew that any relapse to alcohol on her part would likely result in the
children's permanent removal, she had already reduced her AA meeting attendance
to once a week and the Agency had begun getting reports that Jack and Jamie
were again coming to school dirty and unkempt and that Jack had stopped turning
in his homework or making academic progress, despite calls by school staff to
Z.B. about the problem.
In
April, the juvenile court terminated Z.B.'s parental rights to Savannah and
Julia based on the failure of reunification efforts and placed the girls for
adoption. Less than two weeks later,
Z.B. was found passed out in her car (with Jamie and Cassidy as passengers) as
she waited to pick up Jack from school; school staff had a difficult time
waking her and reported that she and her car smelled of alcohol. Jamie and Cassidy were dirty; the car was
filthy and contained trash. The police
did not arrest Z.B., but would not let her drive, so the school principal
transported the family home.
In
an interview with social workers the next day, Z.B. initially denied that she
had had anything to drink in the preceding two and one-half years and said that
her blood pressure medication had caused her to become drowsy. When confronted with reports from school
staff that she had smelled of alcohol, Z.B. claimed that she had had one drink
(a "beer with tomato juice") in the morning, but then worked in her
backyard all day before going to the school.
Asked how she would fare if tested for alcohol right then, Z.B. admitted
that she might test positive.
Jack
told the social worker that his mother kept beverages that were off-limits to
him and when she drank those beverages, she would become tired, angry and
sick. He also indicated that, when his
mother was not feeling well, he had to be the caregiver for his younger
sisters.
Based
on the recent school incident and a report that Z.B. had driven Jack, Jamie and
Cassidy to a restaurant while under the influence on a prior occasion, the
Agency filed new section 300 petitions on behalf of those children and placed
them in foster care. Shortly after the
children were detained, Z.B. requested voluntary services, enrolled in an
outpatient program at Family Recovery Center, started a host of classes and
drug testing and began regular visitation with the children.
As
a result of Z.B.'s substance abuse history, the termination of her parental
rights to Savannah and Julia and her demonstrated inability to remain clean and
sober absent court and Agency supervision, the Agency recommended that the
juvenile court deny her reunification services.
Agency's requests.
At
the contested jurisdictional and dispositional hearing, Z.B. opposed the
Agency's recommendations, arguing that her prompt participation in voluntary
services established the absence of a risk of harm and that either (a) the
petition should be dismissed or (b) Jack and Jamie should be returned to her care
and the court should order reunification services for her. The court made jurisdictional and
dispositional findings, removed Jack and Jamie from Z.B.'s care and denied her
reunification services. Z.B. challenges
the resulting judgments.
DISCUSSION
1.
Section 300, subdivision (b)
provides a basis for juvenile court jurisdiction where a child has suffered, or
where there is a substantial risk that the child will suffer serious physical
harm or illness as a result of the parent's substance abuse and the resulting
inability to provide regular care for the child. This statute protects not only children who
are currently being abused or neglected, but also "the safety, protection,
and physical and emotional well-being of children who are at risk of [such]
harm." (§ 300.2;
Cal.App.4th 183, 194-196 [recognizing that a court need not wait until a child
is seriously abused or injured to assume jurisdiction].) Moreover, the legislative scheme recognizes
that a child's well-being depends on a "home environment free from the
negative effects of substance abuse . . . ." (§ 300.2; In re Heather A., supra, 52 Cal.App.4th at
pp. 194-196.)
In the juvenile court, the Agency
bears the burden of establishing harm or a substantial risk of harm by a
preponderance of the evidence.
(§ 355, subd. (a); In re
J.K. (2009) 174 Cal.App.4th 1426, 1432.)
On appeal, we review a challenge to a juvenile court's exercise of
jurisdiction over a child to determine whether its findings are supported by
Autumn H. (1994) 27 Cal.App.4th 567, 575.)
The parent has the burden to establish the lack of sufficient
evidence. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) Z.B. has not met that burden here.
Historical events, including a
parent's past conduct, are relevant to the determination of whether a child
presently needs the juvenile court's protection. (In re
Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another
ground in Renee J. v. Superior Court
(2001) 26 Cal.4th 735, 748, fn. 6; In re
Petra B. (1989) 216 Cal.App.3d 1163, 1169 [recognizing that a parent's
past conduct is a good predictor of future behavior].) In this case, the evidence of Z.B.'s inability
to maintain her sobriety without intervention by the Agency and the court is
essentially uncontroverted. Further, the
fact that she was found passed out in her car, with her youngest two children
present, amply establishes a risk of harm and thus supports the juvenile
court's jurisdictional findings.
Z.B. argues that her relapse was
understandable as a result of the termination of her parental rights as to
Savannah and Julia and that she immediately responded to the relapse by
undertaking voluntary services, apparently as a basis for contending that the
risk of harm to Jack and Jamie was insubstantial. However, Z.B. did not seek out services to
address her relapse until after the removal of her children yet again. Further, even after the current proceedings
were pending, Z.B. took Jack, Jamie and Cassidy to the home where she knew
Dustin was living and left them unattended in a vehicle outside the home,
notwithstanding the existence of a protective restraining order against Dustin
that was intended to protect them. Based
on this evidence, the juvenile court could reasonably conclude that there was a
substantial risk of harm to Jack and Jamie.
2.
The juvenile court may remove a
child from her parent's physical custody if there is "a substantial danger
to the [child's] physical health, safety, protection, or physical or emotional
well-being" and there are no other reasonable means of protecting the
child's physical health. (§ 361,
subd. (c)(1); Cal. Rules of Court, rule 5.695(d)(1).) Existing actual harm is not required; rather,
the focus of the removal statute "is on averting harm to the
child." (In re Diamond H., supra, 82 Cal.App.4th at
p. 1136.)
In determining whether a substantial
danger exists, the court may consider a parent's past conduct and current
situation and must assess whether she has progressed sufficiently to eliminate
the risk of harm. (In re S.O. (2002) 103 Cal.App.4th 453, 461; cf.
Cal.App.3d 1214, 1221.) In the juvenile
court, the Agency has the burden of showing, by clear and convincing evidence,
that removal is necessary to protect the child; in proceedings in this court,
the parent bears the burden of showing that there is no substantial evidence to
support the juvenile court's removal order.
(In re Diamond H., supra,
82 Cal.App.4th at p. 1135; In re
Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Again, the evidence supports the
juvenile court's findings that removal was necessary to protect Jack and Jamie
from substantial danger. Z.B.'s alcohol
abuse adversely impacted her ability to properly care for her children over the
course of many years and, despite having had several opportunities to benefit
from treatment, she was unable to mitigate the risks to them from such
abuse. (See § 300.2 [recognizing
that a child's well-being depends on the existence of a home environment that
is "free from the negative effects of substance abuse"].) The fact that Z.B.'s history was not limited
to merely being under the influence of alcohol, but also driving under the
influence with her children in the car, permitted the court to conclude that
she failed to appreciate the danger of her conduct, to the children and
herself, and that she would continue to engage in similar behavior in the
future. The evidence of the incident in
which Z.B. took the children to Eric's home similarly supports an inference
that she was either unaware or unconcerned about the need to provide for her children's
safety and protection. This evidence is
sufficient to support the court's order removing Jack and Jamie from Z.B.'s
custody.
3.
Once a child is removed from
parental custody, the juvenile court must, except as provided in section 361.5,
subdivision (b), order the Agency to provide services to the parent to
facilitate family reunification. (
Cal.App.4th 49, 59.) There are, however,
statutory exceptions to the requirement of reunification services, reflecting a
legislative acknowledgement that providing reunification services in certain
circumstances may be fruitless. (
63 Cal.App.4th 470, 478.)
As
relevant here, section 361.5, subdivision (b), provides:
"Reunification
services need not be provided to a parent or guardian described in this
subdivision when the court finds, by clear and convincing evidence, any of the
following:
[¶] . . . [¶]
"(10) That the court ordered termination of
reunification services for any siblings . . . of the child
because the parent or guardian failed to reunify with the
sibling . . . after . . . [removal]
from that parent or guardian . . . and that, according to
the findings of the court, this parent or guardian has not subsequently made a
reasonable effort to treat the problems that led to removal of the
sibling . . . .
"(11) That the parental rights of a parent over any
sibling . . . of the child had been permanently
severed, . . . and that, according to the findings of the
court, this parent has not subsequently made a reasonable effort to treat the
problems that led to removal of the sibling . . . . [¶] . . . [¶]
"(13) That [a] parent . . . has
a history of extensive, abusive, and chronic use of drugs or alcohol and has
resisted prior court-ordered treatment for this problem during a three-year
period immediately prior to the filing of the petition that brought that child
to the court's attention . . . ."
Z.B.
contends that there was insufficient evidence to support the juvenile court's
denial of reunification services to her under section 361.5, subdivision
(b)(10), (11) or (13). We disagree.
It is undisputed that the juvenile
court terminated reunification services for Z.B. in the dependency proceedings
relating to Savannah and Julia and later terminated her parental rights to
them. Further, as discussed above, Z.B.
was unable to integrate the tools taught in her numerous treatment programs to
get control of her alcohol abuse problem, including the programs in which she
participated in 2010 and 2011. Based on
this past lack of success, the juvenile court could have reasonably concluded
that Z.B.'s enrollment in additional treatment programs, only after dependency
proceedings were again initiated on the children's behalf, did not constitute a
reasonable effort to treat her alcohol abuse problems. (See Randi R.
v. Superior Court (1998) 64 Cal.App.4th 67, 73 [recognizing that where a
parent has had many opportunities to gain control of his or her alcohol abuse
problem, but has been unable to do so, it is not appropriate to sacrifice his
or her children's futures merely to give him or her another chance to try to
get and stay sober].)
Termination of reunification
services is equally proper under section 361.5, subdivision (b)(13) based on
Z.B.'s continued abuse of alcohol after participating in court-ordered
treatment programs. (§ 361.5, subd.
(b)(13); Karen S. v. Superior Court
(1999) 69 Cal.App.4th 1006, 1010.) Where
a parent has demonstrated an inability to use skills and behaviors taught in
treatment to maintain a sober life, the juvenile court may properly conclude
that the provision of reunification services would be ineffective to protect
his or her child. (Ibid.) Such is the case
here.
Z.B. nonetheless contends that the
juvenile court abused its discretion in denying reunification services for her
because she established, by clear and convincing evidence, that offering
services to her was in Jack and Jamie's best interests. (See § 361.5, subd. (c)
[authorizing the juvenile court to order services, despite the applicability of
a section 361.5, subd. (b) bypass provision, if it finds by clear and
convincing evidence that providing services would be in the children's best
interests].) Although the concept of a
child's best interest " 'is an elusive guideline that belies rigid
definition,' " the factors to be considered in determining the
child's best interests center on the underlying purpose of the statutory scheme
" 'to maximize a child's opportunity to develop into a stable,
well-adjusted adult.' " (
Cal.App.4th 55, 66, quoting Adoption of
Michelle T. (1975) 44 Cal.App.3d 699, 704.)
Thus, the issue of whether the
provision of reunification services is in a child's best interests turns on a
number of factors, including the parent's current efforts and fitness, as well
as his or her history, the gravity of the problem that led to the dependency,
the degree to which the problem may be easily removed and the degree to which
it actually has been removed. (See
26 Cal.4th at p. 750; In re
Kimberly F. (1997) 56 Cal.App.4th 519, 532.) The paramount concern underlying a child's
best interests, however, is the child's need for stability and continuity. (See In re
Christina A. (1989) 213 Cal.App.3d 1073, 1079-1080.) We review the juvenile court's decision about
whether offering reunification services to a parent would be in the child's
best interests for an abuse of discretion.
(§ 361.5, subd. (c); Cheryl P.
v. Superior Court (2006) 139 Cal.App.4th 87, 96, fn. 6.) We find no such abuse here.
As Z.B. points out, her current
efforts to regain sobriety have been commendable; however, as recounted above,
she has a significant history of alcohol abuse and has been consistently
unsuccessful in maintaining sobriety absent court and Agency supervision. In addition, evidence in the record shows
that Z.B. has a tendency to minimize or deny the existence of her substance
abuse problem and the adverse impact that that problem has upon her children's
needs for stability, continuity and protection.
Under these circumstances, the juvenile court did not abuse its
discretion in concluding that Z.B. had not established that, at the time of the
contested hearing, providing her with reunification services was in Jack and
Jamie's best interests. (See
64 Cal.App.4th at p. 73.)
DISPOSITION
The
judgments are affirmed.
McCONNELL, P. J.
WE
CONCUR:
McINTYRE,
J.
IRION,
J.
name="_ftn1" title="">[1] All further statutory
references are to this code.
name="_ftn2" title="">[2] We take judicial notice of this unpublished opinion on
Z.B.'s earlier appeal challenging the superior court's termination of her
parental rights as to Savannah and Julia, as well as a prior petition for
extraordinary relief filed by her relating to Jamie. (Z.B. v.
Sup. Ct. (D060624, Jan. 5, 2012) [nonpub. opn.].)
