In re Michael T.
Filed 1/25/13 In
re Michael T. CA4/1
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
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certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re MICHAEL
T. et al., Persons Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY
HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
BONNIE T.,
Defendant and Appellant.
D062326
(Super. Ct. No.
SJ11674A-B)
APPEAL
from a judgment of the Superior Court of
County, David B. Oberholtzer, Judge. Affirmed.
Bonnie
T. appeals a judgment declaring her minor children, Michael T. and Makayla T.,
dependents of the juvenile court and removing them from her custody. Bonnie challenges the sufficiency of the
evidence to support the court's dispositional order as to Makayla. She also contends the court abused its
discretion by requiring her to participate in a
part of her reunification plan. We
affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
In
June 2011, Bonnie was arrested for driving under the influence of alcohol while
she had three-year-old Makayla in the car.
Bonnie was charged with willful cruelty to a child, placed on probation
and ordered to complete a 52-week child endangerment program and attend
Alcoholics Anonymous (AA) meetings.
On
April 30, 2012, the San Diego County Health
and Human Services Agency (Agency) received a referral about a domestic
violence incident involving 15-year-old Michael. Bonnie and Michael were arguing in Makayla's
presence. Michael said Bonnie was going
"crazy," calling him names and threatening to throw things. They physically struggled over Makayla, who
told Michael she was scared. The police
arrived and saw a broken table on the front porch and heard plates
breaking. The police also heard Bonnie
yelling and screaming at Michael and accusing him of being drunk. Michael was calm and did not appear
intoxicated. Bonnie was uncooperative
and confrontational. She was confused
and appeared to be under the influence of alcohol. Michael said he was tired of the stressful
living conditions and wanted to leave home.
Bonnie
signed a safety plan allowing Michael and Makayla to live with their adult
sister, Natasha G., during Agency's investigation. Natasha told the social worker that Bonnie had
a history of methamphetamine use and had been struggling with mental health
issues for a long time. Michael reported
Bonnie had a history of methamphetamine and alcohol abuse, as well as mental
health issues.
Both
Natasha and Michael believed Bonnie had relapsed a few days before the April 30
domestic violence incident. Bonnie left
Michael, Makayla and Natasha's daughter home alone overnight while she went to
a bar. The next morning, Natasha noticed
Bonnie's pupils were dilated.
The
social worker interviewed Makayla, who reported being scared around Bonnie
because she spanked her with a belt and it hurt. Makayla said Bonnie and Michael fought a lot,
describing how Bonnie kicked Michael and Michael pushed Bonnie, hurting
her. Makayla said she got out of the way
of the fighting, but declined to say how it made her feel.
The
social worker interviewed Bonnie, who blamed Michael for the April 30 domestic
violence incident and said he had anger issues.
She denied using drugs or alcohol around that time. She denied having alcohol in her home, even
though there was an open bottle of wine in her living room. Bonnie initially denied having a history of
drug abuse, but later admitted she had attended about five drug treatment
programs. Bonnie reported using
methamphetamine in 2011, as well as having issues with drinking. According to Agency's records, Bonnie had a
substance abuse history dating to 1989.
Bonnie admitted she had not attended the parenting classes and AA
meetings as required by the conditions of her probation for the drunk driving
conviction.
During
the interview, the social worker noticed Bonnie could not stay focused and had
scattered thoughts. Bonnie's behavior
became increasingly abnormal. Toward the
end of the interview, Bonnie appeared to be talking to herself or hearing
voices. She initially denied having
mental health issues, but then said she was seeing a psychiatrist and taking
Seroquel to help her sleep. The social
worker received a note from Bonnie's psychiatrist indicating she had been
prescribed Seroquel and two other drugs for her diagnoses of
features and generalized anxiety disorder.
During
a follow-up interview, Bonnie again denied having a substance abuse history,
stating she had not used drugs or alcohol for more than 10 years. She did not know why Makayla had been removed
from the home, stating Michael was the abusive one. Bonnie said Michael spent too much time at
school and did not help her enough with household chores. She said Michael "cannot control my life
if I want to stay in a hotel overnight and listen to karaoke." In the social worker's opinion, Michael had
taken on a parentified role as shown by his acute awareness of Bonnie's
substance abuse and mental health issues, his responsibility for the care of
four-year-old Makayla, his contribution to household expenses and his feeling
that Bonnie was emotionally dependent on him after the death of Makayla's
father and the maternal grandmother.
On
May 15, 2012, Agency filed a petition in the juvenile court under Welfare and
Institutions Code section 300, subdivision (b),
alleging Michael and Makayla were at substantial risk of harm as a result of
Bonnie's mental illness. The court
detained them in out-of-home care and ordered liberal supervised visits for
Bonnie.
At
a contested jurisdiction and disposition
hearing, the court received in evidence Agency's reports and admitted the
stipulated testimony of social worker Eileen Lapid stating the University of California,
San Diego Gifford Clinic (Gifford Clinic) was a program to treat comorbid
substance abuse and mental illness. The
court received in evidence a certificate showing Bonnie had completed a 52-week
parenting program, which was a component of her 2011 probation. Evidence was also received showing Bonnie had
recently submitted to two drug tests, and the results were negative. After considering the evidence and arguments of
counsel, the court sustained the allegations of the petitions, removed Michael
and Makayla from parental custody and placed them with a relative. The court ordered reunification services for
Bonnie, and found her case plan, including a substance abuse assessment at the
Gifford Clinic, was appropriate, reasonable and likely to alleviate the
problems that led to court intervention.
DISCUSSION
I
Bonnie
challenges the sufficiency of the evidence to support the court's order
removing Makayla from her custody under section 361, subdivision (c). She asserts Makayla was not at substantial
risk of harm in her custody and there were reasonable means to protect her
without removal.
A
Before
the court may order a child
physically removed from his or her parent, it must find, by clear and
convincing evidence, the child
would be at substantial risk of
harm if returned home and there are no reasonable means by which the child can
be protected without removal.
(§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th
1635, 1654.) The jurisdictional findings
are prima facie evidence the
child cannot safely remain in the home.
(§ 361, subd. (c)(1); In re
Cole C. (2009) 174 Cal.App.4th 900, 917.)
The parent need not be dangerous and the child need not have been actually
harmed before removal is appropriate. (In
re Diamond H. (2000) 82 Cal.App.4th 1127, 1136; In re Jamie M. (1982)
134 Cal.App.3d 530, 536.)
We
review the court's dispositional
findings for
to determine whether the evidence is substantial—evidence
that is reasonable, credible and of solid value. (In re S.A.
(2010) 182 Cal.App.4th 1128, 1140.) We
do not pass on the credibility of witnesses, resolve conflicts in the evidence, or weigh the evidence. Instead, we draw all reasonable inferences in
support of the findings, view
the record favorably to the juvenile court's
order and affirm the order even if other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th
38, 52-53; In re Dakota H. (2005) 132 Cal.App.4th 212, 230.) The appellant has the burden of showing there
is no evidence of a sufficiently
substantial nature to support the court's findings or orders.
(In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B
Here,
the court's dispositional order
was based on findings, supported by substantial evidence, that Makayla was at substantial risk of harm as a result of Bonnie's mental
illness. Bonnie had a history of mental
health issues. During the April 30
domestic violence incident with Michael, Bonnie physically pulled Makayla away
from Michael, picked up objects that she threatened to throw and was confused
and talked to herself. When the police
arrived, they heard plates breaking.
Makayla said this caused her to be scared. She also said Bonnie and Michael often fought
and she was afraid of Bonnie because she spanked her with a belt.
The
social workers identified several risk factors necessitating Makayla's
out-of-home placement, including Bonnie's lengthy history of substance abuse
and mental illness and her prior child welfare history.
substance abuse or mental illness, she blamed Michael for her problems and she
failed to recognize how her substance abuse and mental illness negatively
affected her children and placed them at risk.
Bonnie
asserts Makayla would not be at risk of harm in her custody because she: (1) had
two negative drug tests; (2) completed a 52-week parenting class; (3) saw her
psychiatrist monthly; and (4) had pleasant visits with Makayla. However, in light of Bonnie's lengthy history
of substance abuse and mental illness, the two recent drug tests with negative
results do not mitigate the risk to Makayla.
Bonnie was untruthful about having alcohol in her home. After admitting she had used methamphetamine
in 2011, Bonnie claimed she had not used drugs or alcohol for more than 10
years. Presumably, Bonnie did not
consider her conviction for driving under the influence of alcohol with Makayla
in the car to be an indication she had a substance abuse problem. Bonnie's lack of honesty and insight about
her problems permitted a reasonable inference that Makayla would not be safe in
her care.
Although
Bonnie recently completed a 52-week parenting class as a condition of
probation, there was evidence she had not made progress with her course goals
and was unable to implement what she had learned.
verbal abuse of Michael in Makayla's presence, refused to accept responsibility
for her actions and blamed Michael for her problems. Thus, Bonnie's participation in these classes
did not deter her from placing Makayla at risk of harm.
Bonnie
claims she saw her psychiatrist monthly and took Seroquel daily, thus
eliminating the risk to Makayla.
However, even though Bonnie was under psychiatric care and was
prescribed medication for her mental illness, the fighting with Michael
continued, and even escalated. Bonnie
talked to herself, heard voices and was confused. She believed she was taking Seroquel to help
her sleep and denied having a mental health diagnosis. Under these circumstances, Bonnie's lack of
understanding of her mental health issues placed Makayla at substantial risk of
harm in her custody.
Although
Bonnie was having positive four-hour visits with Makayla, their time together
was supervised and does not indicate Makayla could safely live with Bonnie given
her ongoing mental health issues, persistent refusal to acknowledge her
substance abuse history and lack of insight as to how her behavior placed her
children at substantial risk of harm.
Substantial evidence supports the court's finding Makayla would be at
substantial risk of harm if returned home.
C
Bonnie
asserts the protective issues as to Makayla have been resolved because Michael
was no longer in the home. She also
claims there were less drastic alternatives to Makayla's removal from her
custody, and suggests she could have signed a safety plan with protective
measures to ensure Makayla's safety at home.
However, the record contains sufficient evidence that Makayla could not
be protected without removing her from Bonnie's custody. As we previously discussed, Bonnie continues
to deny she has mental health and substance abuse issues, she lacks insight and
believes Michael is the cause of her problems, and she fails to understand how
her behavior endangers Makayla. Bonnie's
parenting course facilitator reported Bonnie still has work to do. From this, the court could reasonably find
that returning Makayla to Bonnie's custody, even with Agency supervision and
services in place, and without Michael in the home, was not a feasible
alternative to removal.
II
Bonnie
contends the court erred by requiring her to participate in a substance abuse
treatment program as part of her case plan.
She asserts: (1) there was no
evidence she has a substance abuse problem as shown by her two negative drug
tests; and (2) substance abuse was not a basis for juvenile court jurisdiction.
A
At
the disposition hearing, the court must order child welfare services for the
child and the child's parents to facilitate reunification of the family. (§ 361.5, subd. (a); In re Christopher
H. (1996) 50 Cal.App.4th 1001, 1006.)
"The court has broad discretion to determine what would best serve
and protect the child's interest and to fashion a dispositional order in accord
with this discretion. [Citations.] We cannot reverse the court's determination
in this regard absent a clear abuse of discretion. [Citation.]" (In re
Christopher H., at p. 1006.)
A
reunification or service plan
" ' "must be appropriate for each family and be based on
unique facts relating to that family." '
[Citation.]" (In re Kristin W. (1990) 222 Cal.App.3d 234,
254; In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) The plan
must be specifically tailored to the needs of the parents and designed to
eliminate those conditions that led to the loss of custody. (In re Joanna Y. (1992) 8 Cal.App.4th
433, 438; In re Basilio T. (1992) 4 Cal.App.4th 155, 172.) However, the provision of services need not
be limited to the allegations of the petition filed under section 300. (In re
Christopher H., supra, 50 Cal.App.4th
at p. 1008.) Indeed, the court may
consider any relevant evidence for disposition to help it determine how to
facilitate reunification for a family and what would be in the child's best
interests. (See In re Corey A. (1991) 227 Cal.App.3d 339, 346-347.)
B
Here,
the court ordered Bonnie, as part of her case plan, to attend an initial
substance abuse assessment and intake appointment at the Gifford Clinic and to
comply with the clinic's recommendations.
The evidence showed Bonnie's alcohol abuse had affected her ability to
properly care for her children. She had
been convicted of drunk driving with Makayla in the car, and had not complied
with the terms of her probation at the time the dependency petition was filed. When police officers responded to the April
30 domestic violence incident that led to the filing of the petition, they
suspected Bonnie was under the influence of alcohol. Three nights earlier, Bonnie had left
Michael, Makayla and a granddaughter home alone while she went to a bar to drink. During a home visit by a social worker, an
open bottle of wine was found in Bonnie's living room. Bonnie claimed she had not used drugs or
alcohol for more than 10 years, but there was evidence Bonnie's substance abuse
history dated to 1989. She had attended
five drug treatment programs in the past and admitted using methamphetamine in
2011. Under these circumstances, the
court could reasonably find Bonnie's substance abuse was an obstacle to
reunification, which needed to be addressed in her case plan. (In re Christopher H., supra,
50 Cal.App.4th at p. 1008.)
Moreover,
the Gifford Clinic was a program for patients, such as Bonnie, with both
substance abuse and mental illness diagnoses.
Thus, requiring Bonnie to be assessed for substance abuse treatment at
this clinic was specifically tailored to address her particular circumstances
and unique needs. (In re Dino E.,
supra, 6 Cal.App.4th at p.
1777.) There was no abuse of discretion.
DISPOSITION
The
judgment is affirmed.
McCONNELL,
P. J.
WE CONCUR:
HALLER, J.
AARON, J.
name="_ftn1" title="">[1] Michael had
previously been removed from Bonnie's custody because of her mental health and
substance abuse issues.
name="_ftn2" title="">[2] Statutory references
are to the Welfare and Institutions Code.
