In re Lucy L.
Filed 7/20/12 In re Lucy L. CA2/4
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re LUCY L., a
Person Coming
Under the Juvenile
Court Law
B235233
(Los Angeles County
Super. Ct. No. CK41335)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JAMES L.,
Defendant and Appellant.
APPEAL
from orders of the Superior Court of
County, Donna Levin, Juvenile Court Referee. Affirmed.
Neale B. Gold for Defendant
and Appellant.
John F. Krattli, Acting
County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby,
Deputy County Counsel, for Plaintiff and Respondent.
L. (father) appeals from the juvenile court’s jurisdictional and dispositional
orders regarding his child, Lucy L. He
contends the court’s findings are not supported by sufficient evidence. He further asserts he was not permitted to cross-examine
the case social worker (CSW), resulting in a violation of his
federal constitutions. We reject his
challenges, and affirm.
Lucy
was five days old when she was detained by the
(DCFS) in March 2011. DCFS filed a
dependency petition
alleging that mother and father had
failed to protect Lucy and were unable to care for her due to their substance
abuse. (Welf. & Inst. Code, § 300,
subd. (b).)
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DCFS
alleged the following: (1) father had a
history of substance abuse and was a current abuser of marijuana, which renders
him incapable of providing regular care for Lucy; (2) father had been convicted
of possession of controlled substance paraphernalia; (3) Lucy’s siblings had
received permanent placement services due to father’s substance abuse; and (4)
father’s substance abuse endangers Lucy’s physical health and safety and
creates a detrimental home environment, placing her at risk of physical harm
and damage. In addition to allegations
concerning mother’s history and current abuse of controlled substances, DCFS
also alleged that mother had used illicit drugs during her pregnancy and had
tested positive for marijuana and opiates during her pregnancy.
Mother
gave birth to Lucy in March 2011. The
hospital notified DCFS that mother had positive tests for marijuana during her
pregnancy. The CSW visited parents in
the hospital. Mother stated she found
out she was pregnant with Lucy in June 2010, at which point she stopped smoking
marijuana. Mother admitted that she
smoked marijuana with father about two times a day until that time. Mother also informed the social worker that
she had lost parental rights to her four other children because she failed to
comply with a case plan to address her abuse of methamphetamine and
marijuana. Mother said she used to abuse
methamphetamines, but had not used them in three years. She claimed she and father had completed drug
rehabilitation programs. Mother said she
wanted to care for Lucy.
Father
initially denied he abused drugs. Then
he admitted that he had smoked marijuana with mother a couple of times a day
until mother found out she was pregnant.
When the CSW asked him to submit to a drug test, Father eventually
admitted he had smoked marijuana a couple of days before Lucy’s birth. Father claimed he had not used
methamphetamines in three years. He
denied any criminal history, but records reviewed by DCFS reflected several arrests
and convictions, including a misdemeanor conviction for possession of
controlled substance paraphernalia in 2004.
Mother’s
nurse said mother had been breastfeeding Lucy and that mother appeared bonded
to the child. Mother’s nurse said both
mother and Lucy were healthy and would be discharged from the hospital.
The
CSW spoke with Michelle Bryant, a social worker at the hospital. Bryant said mother had tested positive for
marijuana three times during her pregnancy, but the confirmation test for one
of those positive tests came back negative.
Both mother and Lucy had tested negative for drugs at the birth. Bryant noted that mother began prenatal care
in her first trimester and Lucy was born at full term.
On
March 15, the CSW visited parents in their home. Lucy appeared to be healthy and did not have
any visible marks or bruises. The home
was clean and contained appropriate baby supplies and food. Mother said she was willing to enter an
inpatient drug program. Father said he
had signed up for an outpatient drug treatment program.
During
a team decision making meeting on March 16, mother admitted that she had used
marijuana until August 2010, two months after she found out she was
pregnant. Parents also stated they had
not completed a drug treatment program
and had not maintained their sobriety.
Lucy was taken into protective custody and placed in foster care.
At
the detention hearing, the juvenile court found prima facie evidence that Lucy
was a person described in section 300, subdivision (b). The court referred the parents for
reunification services and ordered monitored visits with Lucy for three hours,
three times a week.
On
May 2, DCFS filed its jurisdiction/disposition report. The report indicated that mother had been in
an inpatient drug program for over 30 days, was cooperating with her
counselors, participating in various programs, and testing clean. The CSW wrote that father was in jail on charges
that he had made a bomb and was found playing with it. If convicted, father faced imprisonment for
up to two years. The CSW attempted to
interview father but he became upset and walked out of the interview.
The
CSW was concerned that mother was untruthful about using drugs during her pregnancy,
both parents had recently used marijuana despite reportedly completing drug
programs, and father was so volatile that he could not be interviewed. Because parents had lost parental rights to
other children due to substance abuse, the social worker believed Lucy was at a
very high risk for future abuse and neglect.
On
July 5, DCFS filed a progress report indicating that the criminal charges
against father had been dropped and both parents were enrolled in drug
treatment programs and testing negative for drugs. The report concluded that it would be in
Lucy’s best interest to offer the parents reunification
services and it recommended that the court order these services for both
parents.
At
the contested jurisdiction and disposition hearing on July 7, the juvenile
court found that while parents were working on their substance abuse problems,
there was still a risk to Lucy due to parents’ lengthy drug histories and the
fact that their other children had been ordered into permanent plans due to
parents’ substance abuse. The court
concluded that Lucy was a child described by section 300, subdivision (b). It declared Lucy to be a dependent of the
court and found there was a substantial risk of danger if Lucy were returned to
parents’ care. It removed Lucy from
parents and gave custody to DCFS for suitable placement. As to mother, the court permitted four- to
six- hour daytime unmonitored visits three times a week at mother’s inpatient
drug treatment program and gave DCFS discretion to liberalize. The court allowed father to have monitored
visits twice a week and gave DCFS discretion to liberalize so long as he
continued to test negative for drugs.
The
court also ordered both parents to complete drug and alcohol programs with
aftercare, random weekly drug testing, 12-step program attendance, parenting
classes, and individual counseling.
Father timely appeals.
I
Father
contends there was insufficient evidence to support the juvenile court’s
jurisdiction.
In
dependency proceedings, DCFS must
prove by a preponderance of the evidence that the child who is the subject of
the petition is a person described by section 300. (§ 355, subd. (a).) Section 300, subdivision (b) provides in part
that jurisdiction may be assumed if the child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm or illness,
as a result of inadequate parental supervision or the parent’s inability to
provide regular care due to his or her substance abuse.
deciding whether a child presently needs the court’s protection, so long as
those events are not too remote or the risk of harm to the child too
speculative. (See In re David M. (2005) 134 Cal.App.4th 822, 832.)
“‘The
statutory definition consists of three elements: (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
David M., supra, 134 Cal.App.4th at p. 829.) “The third element ‘effectively requires a
showing that at the time of the jurisdiction hearing the child is at
substantial risk of serious physical harm in the future (e.g., evidence showing
a substantial risk that past physical harm will reoccur). [Citations.]’” (Ibid.)
We
review the court’s jurisdictional finding for sufficiency of the evidence. (In re
N.M. (2011) 197 Cal.App.4th 159, 168.)
In doing so, we review the record to determine whether there is any
substantial evidence to support the court’s conclusions. We draw every reasonable inference and
resolve all evidentiary conflicts in favor of the court’s order. (Ibid.)
The
record contains sufficient evidence to sustain the dependency petition under
section 300, subdivision (b). Father
admitted that he used marijuana with mother.
While father initially stated they used marijuana only until mother
found out she was pregnant, mother admitted that she used marijuana until two
months after she found out she was pregnant, and father later admitted that he
used marijuana two days before Lucy was born.
Father
contends DCFS failed to present evidence showing how his use of marijuana during
mother’s pregnancy harmed or caused a substantial risk of serious harm to
Lucy. Even if this were so, evidence
showed that father failed to protect Lucy from in-utero exposure to marijuana
resulting from mother’s drug use. “To
enable juvenile courts to protect drug-exposed infants and to compel parents to
undergo drug rehabilitation therapy and to afford child protection services to
the family, courts must be able to assert jurisdiction over infants born at
risk because of prenatal exposure to dangerous drugs.” (In re
Troy D. (1989) 215 Cal.App.3d 889, 898.)
Further,
DCFS presented evidence connecting father’s substance abuse to neglect of his
other children, which resulted in the juvenile court sustaining several section
300 petitions on behalf of those children and eventually terminating father’s
parental rights with respect to them. In
one instance, father used marijuana at the home and in the presence of the
children. Father failed to complete
reunification services for these children and continuously used marijuana from
his most recent dependency case through mother’s pregnancy with Lucy. This evidence demonstrated by a preponderance
of the evidence that father had continuing problems with substance abuse, and
these problems placed Lucy at substantial risk of serious physical harm.
Father
argues that his past behavior regarding his other children was too remote and
should not have been considered by the court.
“‘[P]revious acts of neglect, standing alone, do not establish a
substantial risk of harm; there must be some reason beyond mere speculation to
believe they will reoccur.
[Citations.]’ [Citation.]” (In re
David M., supra, 134 Cal.App.4th at pp. 831-832.) Father’s neglect of his other children was
based on his abuse of drugs, including marijuana. This abuse continued while mother was
pregnant with Lucy and father admitted he used marijuana two days before Lucy
was born. That father’s drug use was
likely to reoccur was not speculative, particularly since he admitted to
continuously using marijuana between the previous dependency cases and Lucy’s
birth. Thus, it was proper for the court
to consider his history of drug abuse and dependency proceedings, along with
the other evidence presented.
II
Father
contends the evidence was insufficient to support the dispositional order.
After
the juvenile court finds a child to be within its hearing, the court must
conduct a dispositional hearing and decide where the child will live while
under the court’s supervision. (
169.)
“A
removal order is proper if based on proof of parental inability to provide
proper care for the child and proof of a potential detriment to the child if he
or she remains with the parent.
[Citation.] ‘The parent need not
be dangerous and the minor need not have been actually harmed before removal is
appropriate. The focus of the statute is
on averting harm to the child.’
[Citation.] The court may
consider a parent’s past conduct as well as present circumstances. [Citation.]”
(In re N.M., supra, 197
Cal.App.4th at pp. 169-170.)
If
the court finds by clear and convincing evidence that the child’s welfare
requires removal due to a substantial danger, or risk of danger, to the child’s
physical health if he or she is returned home, and there are no reasonable
alternatives to protect the child, the court may issue a removal order. (§ 361, subd. (c)(1).) “Whether the conditions in the home present a
risk of harm to the child is a factual issue.
Again, we apply the substantial evidence test.” (In re
N.M., supra, 197 Cal.App.4th at p. 170.)
As
an initial matter, father did not object to the removal order nor did he
present evidence or argument with regard to the court’s dispositional
finding. Even if he had, substantial evidence
supports the juvenile court’s order to remove Lucy from father’s custody. In addition to the evidence of father’s drug
use, father had only recently begun attending Narcotics Anonymous and
Alcoholics Anonymous meetings. He had
not signed up for any other programs since being released from jail. He had relapsed in the past. Thus, there was substantial evidence that
there was a substantial risk to Lucy’s physical health if she were returned
home.
III
Father
argues that because the CSW was not present at the jurisdictional and
dispositional hearing, he was not permitted to cross-examine her about the
contents of her report, resulting in a violation of his constitutional right to
due process.
Father’s
attorney did not object to the absence of the CSW. Father’s attorney said “it looks like at the
last court date I did ask for the social worker to be present, but I will
proceed by argument.” She added: “It was my intention to cross-examine the
social worker; however, I will proceed by argument.” DCFS’s attorney explained that she told the
social worker not to attend the hearing because she anticipated the case would
settle as a result of DCFS recommending that the court order family
reunification services for father and mother.
Father’s attorney proceeded with the argument.
Father
contends that “his attorney’s efforts to raise this issue with the court became
futile” and thus preserved the issue for appellate review. A party is not required to make repeated
objections to preserve an issue if further objection would be futile. (3 Witkin, Cal. Evidence (4th ed. 2000)
Presentation at Trial, § 387, pp. 479-480.)
But there was no objection by father’s attorney and no request to have
the social worker present or to stay the proceedings until the social worker
could be present. Thus, we conclude that
father’s attorney failed to object to the social workers absence and forfeited
appellate review of that issue.
The
orders of the juvenile court are affirmed.
EPSTEIN,
P. J.
We concur:
WILLHITE, J.
MANELLA, J.
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are to the Welfare and Institutions Code unless otherwise indicated.
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