In re J.S.

Filed 1/5/10 In re J.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Stanislaus County. Nancy B. Williamsen, Commissioner.

Roni Keller, under appointment by the Court of Appeal, for Defendants and Appellants.

John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.

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Sixteen-year-old S.S., mother of infant J.S., appeals from the jurisdictional and dispositional orders of the juvenile court that ordered him removed from mothers custody, and ordered reunification services for mother. Mother contends the orders were not supported by sufficient evidence. Specifically, mother argues that her history of substance abuse and her positive test for methamphetamine when she gave birth to J.S. are outweighed by the three months of sobriety that occurred before the hearing and by the treatment and parenting classes she was attending.

We affirm the juvenile courts orders, concluding that mothers three-year history of substance abuse provided ample evidence to support the orders. Three months of sobriety, while commendable, did not establish that there was not a substantial risk to J.S.s health, safety, or emotional well-being.

FACTUAL AND PROCEDRUAL SUMMARY

The first amended petitionfiled by the Stanislaus County Community Services Agency (agency) alleged that J.S. should be adjudged a dependent of the juvenile court because (1) his parents were unable to provide regular care for him because of their substance abuse, and (2) the alleged father was incarcerated. (Welf. & Inst. Code,  300, subds. (b), (g).)^[1] To support these allegations, the petition alleged (1) mother tested positive for methamphetamine at the time J.S. was born (although J.S.s test was negative); (2) mother was on juvenile probation after being adjudged a ward of the juvenile court pursuant to section 602; (3) mother admitted (and later denied) ingesting methamphetamine twice per week during the three weeks prior to J.S.s birth; (4) mother was diagnosed as having dysthymic disorder;^[2](5) father was serving a five-year prison term for possession of narcotics for the purpose of sale (Health & Saf. Code,  11351) and having intercourse with mother while she was a minor (Pen. Code,  261.5, subd. (d)); and (6) mother had not complied with the directives of her caregiver, her maternal grandmother.

The facts submitted to the juvenile court in the jurisdictional and dispositional reports indicated that mother essentially raised herself with virtually no adult support. Mothers biological mother was in and out of jail for a variety of offenses, apparently incurred to support her drug habit. The maternal grandmother, with whom mother spent a majority of her childhood, also abused drugs. There were allegations that mother was raped several times, beginning when she was 10 years old. She lived with numerous people, eventually ending up with the father of J.S., who was 35 when mother was 14 or 15 years old. She was described as sexually active, despite her young age, and she had not attended school for approximately two years before her arrest, described below.

Mother began abusing drugs as early as the age of 10. There were allegations that she engaged in prostitution to support her habit. She cohabited with J.S.s father for a short period of time until both were arrested for drug offenses.

The section 602 petition alleging mother violated Health and Safety Code section 11350 was found true and mother was sentenced to time in juvenile hall. While in juvenile hall, mother learned she was pregnant. She was released from juvenile hall three weeks before giving birth.

When confronted at the hospital about her positive drug test, mother initially denied using any drugs and then stated she was ingesting methamphetamine twice per week after being released from juvenile hall. Mother later denied using methamphetamine after her release except for one occasion shortly before beginning labor and giving birth.

J.S. was detained when he was able to leave the hospital. Mother reported to the social worker after visiting with J.S. that she was living with her mother and maternal grandparents. She stated that she was tempted to begin abusing drugs again because she was being exposed to drugs by some of her cohabitants. Mother was referred to her probation officer, who detained her and placed her at Hutton House under the supervision of the juvenile probation department.

The social workers evaluation recognized that mother had a difficult childhood and had made many poor decisions. The report noted that mother appeared ready to change her life and the agency and probation department were working together to assist her. A relative had been located who was willing to accept mother and J.S. into the household, but the evaluation process had not yet been completed. When the process was completed, the recommendation was to place mother and J.S. with this family.

Mothers probation officer testified at the contested jurisdictional/dispositional hearing. The probation officer located a foster home that was willing to accept both mother and J.S. She confirmed that mother was receiving substance abuse counseling, was scheduled to receive an assessment as a result of being sexually abused, was attending a substance abuse support group, was enrolled in an independent study program, and was attending parenting classes. Mothers two tests for illegal substances were negative. Finally, the probation officer confirmed that mothers placement in the proposed foster home was not dependent on J.S. being placed with her. Mother could be placed at the foster home and J.S. could join her at a later date.

Mother testified that the counseling she was receiving was assisting her in avoiding a relapse into drug abuse and that she had not used illegal substances since the morning J.S. was born. She confirmed that she had attended three parenting classes, was receiving counseling weekly from a therapist, and had attended her substance abuse support group three times a week for the past two weeks. She completed her work for the independent studies program in which she was enrolled and had begun her summer vacation from school. She explained that she essentially asked to be placed because she did not want to return to live with her mother at her grandparents home because of the temptation to relapse. She was visiting with J.S. every week and wanted to reunify with him as quickly as possible. Mother believed she had complied with all of the terms and conditions of her probation.

Mothers therapist testified that mother was very cooperative during her treatment. She also confirmed mothers diagnosis (dysthymic disorder), and that mother was not prescribed medication for the diagnosis.

Finally, the agencys representative testified this case was unusual because not only had the agency detained mothers child, but mother was on juvenile probation. The case also was challenging because many of the residential programs typically used for substance abusing parents would not accept minors. The representative admitted that mother was complying with her case plan, but additional requirements could be imposed in the future. Mother actively was working on her case plan and had been doing well.

Because mother had just begun the recovery process, the agency did not feel she should regain custody of J.S. at this time, but placement of mother and son in a foster home would be an option at some point in the case. The representative was not familiar with the foster home proposed by mothers probation officer and could not comment on its appropriateness for placement of J.S. At this time, there was nothing mother could do that would lead the agency to recommend placement of J.S. with her because her recovery had begun so recently and was ongoing.

The juvenile court found it had jurisdiction over J.S. and ordered him placed with a relative caregiver. Even though the juvenile court found mother believable, it concluded, as did the agency, that mother had not yet demonstrated for a sufficient amount of time that she would remain clean and sober. The risk of mother relapsing was clear and convincing evidence, in the juvenile courts view, that there was a significant risk of danger to J.S. if he were returned to mother.

DISCUSSION

Mother contends that neither the jurisdictional nor the dispositional order was supported by substantial evidence. Our review of the sufficiency of the evidence is deferential. We review the whole record in the light most favorable to the [order] below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value â€‘‑ such that a reasonable trier of fact could [rule in the same manner]. [Citation.] (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Superior Court (Jones)(1998) 18 Cal.4th 667, 681.) We focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) We presume the existence of every fact the trier of fact reasonably could deduce from the evidence that supports the order. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We will not substitute our evaluations of a witnesss credibility for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)

The evidence before the juvenile court, summarized above, was identical for both issues. At the time of the hearing, mother was a 16-year-old minor on juvenile probation with an admitted history of drug abuse. She admitted she began using illegal substances when she was 12. She tested positive for methamphetamine when she gave birth to J.S. She reportedly turned to prostitution to support her drug habit. She was living and having sexual relations with an older man, and assisted him in selling drugs. She also was using methamphetamine at least twice per week before she was arrested.

No one in her life provided direction as she grew up. She, in essence, raised herself. Both her maternal grandmother, who purported to raise her, and her mother abused drugs. She had no family to which she could turn in difficult times. She had not attended school in the two years before she was arrested. She had no role model to which she could refer in difficult times. As a result of his incarceration, J.S.s father could not assist mother either financially, physically, or emotionally.

Mother now was learning how to be a responsible and productive member of society and how to be a parent. She worked very hard to learn these lessons with the assistance of her probation officer. She enrolled in a parenting class, but attended only three classes. She was receiving treatment for her drug dependency issues, but the treatment began only a few months before the hearing. She had not yet started therapy to assist her in dealing with the sexual abuse she suffered as a child. She admitted making many bad decisions before her arrest, and apparently made a conscious effort to change the direction of her life. The group home at which she was living at the time of the hearing apparently would not accept the child of any resident.

Shortly before the hearing, mothers probation officer located a foster home that was willing to accept both mother and J.S. The agency had not had time to determine whether the possible placement would meet the agencys requirements because it had not been informed before the hearing about the possible placement. The situation was complicated because the probation department was responsible for mothers placement, while the agency was responsible for J.S.s placement.

I.                   Jurisdictional Order

As relevant to these proceedings, section 300, subdivision (b) permits the juvenile court to assume jurisdiction over a child if there is a substantial risk the child will suffer serious physical harm or illness as a result of the parents inability to provide regular care for the child due to the parents mental illness or substance abuse.^[3] The issue was whether there was substantial evidence that mothers drug abuse posed a serious risk of physical harm or illness to J.S.^[4] The juvenile court was required to make this finding by a preponderance of the evidence. ( 355, subd. (a).)

We begin with the proposition that drug abuse is harmful to a person and to a fetus. (See, e.g., In re Rocco M. (1991) 1 Cal.App.4th 814, 825 (Rocco M.).) Mothers drug abuse during her pregnancy created a substantial danger that the child would be harmed physically. Mother admitted to such use, and it was only by luck that J.S. did not test positive for methamphetamine. We say luck because mother ingested methamphetamine on the day she went into labor, and apparently the drug did not have time to reach the fetuss system before J.S. was born. If J.S. had not been born three weeks premature, the methamphetamine would have reached the fetus.

Mother points out that at the time of the jurisdictional hearing, she no longer was using methamphetamine, or any other illegal substance, and had not been for approximately three months. She also was obtaining counseling for her substance abuse issues and was attending a substance abuse support group approximately three times a week. Therefore, according to mother, there was no risk to the child from her prior substance abuse at the time of the hearing.

While it is true that mother was clean and sober at the time of the hearing, it is not clear that J.S. was not at risk. Mother had been clean and sober for approximately two to three months after abusing illegal drugs for at least three years. Much of the time that mother was clean and sober, she was in structured settings, such as a group home or juvenile hall, where remaining clean and sober was not as difficult as it would have been if mother had been placed in a less restrictive setting. Once mother was placed in a less restrictive setting, the chances of a relapse would increase. Any relapse would place J.S. at great risk of physical harm or illness since he was incapable of providing for his own needs.

The juvenile court is not limited to finding jurisdiction only if it can determine with absolute certainty that without intervention the child will suffer physical harm or illness. Section 300, subdivision (b) requires only a substantial risk the child will suffer serious physical harm or illness because of the parents substance abuse. The entire record establishes that there was sufficient evidence to support the juvenile courts conclusion that such a substantial risk existed in this case as a result of mothers history of substance abuse and the short duration of her sobriety.

Mother cites several cases as supporting her position. We have reviewed these cases and conclude that none of them requires us to reach a different conclusion. The three most relevant cases are In re Alysha S. (1996) 51 Cal.App.4th 393 (Alysha S.), Rocco M., and In re Alexander K. (1993) 14 Cal.App.4th 549 (Alexander K.).

In Alysha S. the father challenged the sufficiency of the pleadings contained in the section 300 petition. In concluding that the pleading was insufficient, the juvenile court recognized the only possible basis for finding jurisdiction was the allegation that the father touched his infant daughter in a manner the mother felt was inappropriate over one year before the petition was filed. The father denied any sexual motive and agreed to attend classes to learn how to interact with his daughter appropriately. There were no allegations that the child was injured by the fathers act, and no allegation the allegedly inappropriate touching occurred on more than one occasion, or would occur in the future. The juvenile court thus found the pleading did not allege sufficient facts to find a serious risk of harm at the time of the hearing.

Alysha S. is distinguishable for numerous reasons. First, the instant case does not address the sufficiency of the petition filed by the probation department. Second, mothers admitted lengthy history of substance abuse, especially while pregnant, is much different than an incident that occurred on only one occasion, with no indication it would be repeated. There is always a substantial danger that one with a history of substance abuse may relapse. Such danger cannot be ignored by the juvenile court.

Mother cites Rocco M. for the proposition that it is the conditions at the time of the jurisdictional hearing that must establish there is a substantial risk of harm to the child. We, however, do not read Rocco M. as broadly as mother. The juvenile court in Rocco M. stated that the question was whether the minor was subject to the alleged danger at the time of the hearing, but also recognized that past conduct may be probative of current conditions. (Rocco M., supra, 1 Cal.App.4th at p. 824.) That is why we consider the entire record when deciding whether there is substantial evidence to support the orders. Past conduct may indicate that there exists a serious risk of harm to the minor, even if the parent has reformed at the time of the hearing. The decision cannot be made in a vacuum, ignoring anything that happened in the past. It must be an informed decision based on all of the evidence.

Similarly inapposite is Alexander K., cited by mother, in which the juvenile court found there was no evidence that the father did anything wrong, but found jurisdiction anyway based on the conduct of the child. The appellate court reversed the jurisdictional order because of the lack of misconduct by the father. The alleged misconduct by the father, which the juvenile court and appellate court concluded had not occurred, took place on one occasion years earlier. Here, mothers use of methamphetamine while pregnant and her potential for relapse are conduct that was admitted and recent and can be dangerous to a child

II.                Dispositional Order

A more difficult question arises when addressing the sufficiency of the evidence to support the juvenile courts dispositional order. A juvenile court may not remove a dependent child from the physical custody of a parent or guardian unless one of the six specific conditions listed in section 361, subdivision (c) is met. In this case, only subdivision (c)(1) appears applicable. This subdivision permits removal of a child from the physical custody of a parent only if there is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor can be returned safely to the parents custody. The juvenile court must find such danger by clear and convincing evidence. ( 361, subd. (c).)

While the juvenile court focused on the dangers to which J.S. would be exposed if mother were to relapse, we find one undisputed fact a sufficient basis for the juvenile courts order. At the time of the hearing, mother was not living in a location that would allow her to live with her child. If the juvenile court had returned J.S. to her mother at that hearing, she would have been be required to leave the group home in which she was living. Not only would this have violated her juvenile probation, but it also would have put mother on the street, where she did not have anyone to whom she could turn for assistance. Mothers paternal grandmother told the agency she did not want mother to live with her. Mothers biological mother and maternal grandmother were substance abusers and would have provided an environment that was completely unacceptable for one trying to stay clean and sober. Moreover, if mother had been required to leave the group home, it is not known what consequences would have occurred with her juvenile probation.

Mothers argument relies on the assertion, testified to by her probation officer, that the probation officer had located a foster home that would accept both mother and J.S. But, because this information was not provided to the agency before the hearing, it was unclear whether the foster home would meet the agencys requirements or was safe for an infant being raised by a child with no parenting skills. Therefore, there was no way for the juvenile court to know if J.S. would have been safe in the foster home found by the probation officer. Simply because a foster home states it will accept a dependent child and her infant does not mean that the foster home is a suitable placement for the infant. For these reasons alone, the juvenile courts order was supported by substantial evidence.

Mother cites In re Jasmine G. (2000) 82 Cal.App.4th 282 to support her argument. The facts of that case make it inapplicable here. There, the court reversed the juvenile courts dispositional order removing Jasmine from the care of her parents because, in essence, the parents did not agree with the social workers view of how a teenager should be parented. As the court noted, such issues are not relevant and never should be considered by the juvenile court or the social worker.

CONCLUSION

As indicated, we are affirming the juvenile courts orders. Our affirming the juvenile courts orders, however, does not mean we are unmindful of mothers efforts to assume responsibility for her actions and her child. She has overcome many obstacles and we are hopeful that she and her child will be out of the system soon.

DISPOSITION

The orders appealed from are affirmed.

_____________________

CORNELL, Acting P.J.

WE CONCUR:

_____________________

HILL, J.

_____________________

POOCHIGIAN, J.

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^[1]All further statutory references are to the Welfare and Institutions Code unless otherwise noted.

^[2]The Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) at page 345 defines dysthymic disorder as a chronically depressed mood that occurs for most of the day more days than not for at least 2 years.

^[3]Section 300, subdivision (g) permits the juvenile court to assume jurisdiction over a child if the parent has been incarcerated and cannot arrange for the care of the child. This allegation was directed only at father, who was incarcerated.

^[4]There was no evidence that mothers dysthymic disorder diagnosis posed any risk to J.S. The only relevance of this evidence was that mothers depression could increase the risk that she would relapse into abusing illegal substances.