In re N.B.
Filed 5/30/13 In re N.B. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re N.B., A Person Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY,
Plaintiff and
Respondent,
v.
A.B.,
Defendant and
Appellant.
G047733
(Super. Ct.
Nos. DP023081)
O P I N I O
N
Appeal from orders of the Superior Court of
County, Deborah J. Servino, Judge. Affirmed.
Brent
Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas
S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County
Counsel, for Plaintiff and Respondent.
No
appearance for the Minor.
Appellant
(Mother) challenges the sufficiency of the evidence to support the juvenile
court’s jurisdictional and dispositional orders regarding her two-year-old son
N.B. Finding substantial evidence to
support the orders, we affirm.
FACTS
When
N.B. was born in 2010, Mother was only 15 years old. Although she stopped using drugs at that
time, she resumed using marijuana in 2011 and started using methamphetamine on
a daily basis in early 2012. Father also
has a history of drug use, as well as a criminal record. He separated from Mother after N.B. was born
and is not a party to this appeal.
Since
N.B. was born, his primary caretakers have been his maternal grandmother
Elizabeth and her boyfriend Lee. They
took N.B. and Mother into their home, and they also care for Mother’s teenage
brother Jason. Like Mother and Father,
Elizabeth has used a variety of drugs over the years, and Jason was known to be
a “pothead.†Given all the drug use that
was going on in N.B.’s family, it is hardly surprising that things were chaotic
at his home. In fact, since N.B. was
born, the police have been called out to the home about once a month for one
thing or another.
Rather
than going into all of the calls, we will simply describe the most salient
ones. In December 2011, Elizabeth’s
former pimp broke into the house in the middle of the night and threatened
Elizabeth at gunpoint. He stole $300
from her and threatened to kill her children if she did not come back to work
for him.
In
February 2012, Elizabeth was arrested after methamphetamine and drug paraphernalia
were found in her bedroom. Elizabeth
told the police she always kept her bedroom door locked, and N.B. did not have
access to the room.
In
March 2012, Mother ran out into the street in an apparent suicide attempt. When the police arrived, she admitted this
was not the first time she had tried to kill herself. At the age of 13 she tried to hang herself
and was briefly admitted to a psychiatric hospital. Mother claimed the hanging incident was
merely “a plea for attention.†Although
she was prescribed various anti-anxiety medications, she stopped taking them
after a few months because she did not like the way they made her feel.
In April
2012, Mother got into a scrap with the paternal grandmother Debra after Mother
tried to serve Father with custody papers.
According to Mother, she kicked Debra in self-defense after Debra pushed
her. However, Debra denied being the
aggressor. She claimed Mother punched
her in the head after she tried to take the custody papers away from her.
In
May 2012, Elizabeth wanted to go visit Debra and Father. Mother didn’t like that idea, so after
Elizabeth got in her car, she stood behind it with N.B. in her arms to prevent
her from leaving. After Lee moved Mother
out of the way, she set N.B. down and began pounding on Elizabeth’s car. Lee pushed her away from the car, and as they
were fighting, they fell into the garage door.
Lee claimed Mother punched him during the ordeal, and Mother said Lee
kicked her, but no charges were filed in connection with the incident.
In
July 2012, Mother came home around midnight to get a lighter. Elizabeth thought Mother was high, and upon
finding a methamphetamine pipe in Mother’s purse, she called the police. Mother was arrested for possessing drug
paraphernalia but released the following day.
It
was against this backdrop that N.B. was detained on September 28, 2012. That morning, Elizabeth dropped N.B. off at
preschool, but later in the morning, the power went out at the school, so
Mother returned and picked him up. When
they got home, Mother and Elizabeth started fighting. The police were called, and when they
arrived, Elizabeth consented to a search of the house.
On
the kitchen counter, the police noticed a makeup bag sitting next to some
children’s clothing. When they searched
the bag, they found three methamphetamine pipes, which Mother admitted belonged
to her. She said she used
methamphetamine regularly and also smoked marijuana once in a while. However, she insisted she never brought any
drugs into the house.
When
questioned by the police, Elizabeth admitted she had been smoking marijuana
earlier that morning. She said she
smoked every morning after N.B. went to school and at night after he went to
bed. She also produced a medical marijuana
card that appeared to be valid. She
admitted knowing Mother used methamphetamine but claimed there was nothing she
could do about it because she had “no control over her daughter.†Elizabeth also admitted to using
methamphetamine but claimed she had not done so in several months.
As
for N.B., he appeared to be fine.
Although he suffers from asthma, there was no indication he was being
neglected or mistreated. However, the
officers, in consultation with a social worker, felt the home was unsuitable
for a two year old. Therefore, they
detained N.B. and placed him in a foster home, where he remains to this
day. Mother was arrested and taken into
custody, but she was released later that night.
The next day, the police were again called out to the house, due to a
dispute between Mother and Elizabeth.
The responding officers discovered Elizabeth had kicked holes in two of
the bedroom doors. They convinced Mother
to leave the house until she and Elizabeth both had a chance to cool down.
A
few days later, Mother told the social worker she first started using marijuana
when she was 13 years old and had been using methamphetamine on a daily basis
for the past eight months. However, she
claimed she had never used drugs or been under the influence around N.B. Describing the dynamics in the household, she
said that both she and Elizabeth are bipolar and have anxiety issues. And although Elizabeth helps her out a lot
with N.B., she said she hates her mother because she is “fucked up in the headâ€
and verbally abuses her. She also said
Elizabeth and Lee argue and yell at each other a lot.
Elizabeth
told the social worker she has an extensive narcotics history and has pretty
much “done it all†when it comes to drugs.
However, she said she completed a rehabilitation program in 2011 and
limits her drug use now to medicinal marijuana.
Although she uses marijuana daily, she said she never smokes or is under
the influence around N.B. because she has to take care of him most of the
time. She said Mother helps out with
N.B. once in a while, but Mother has been on such a drug binge lately that she
and Lee essentially raise the child by themselves.
When
the social worker asked Father about Mother and Elizabeth’s relationship, he
said they have “‘gnarly fights’†when they are “‘coming down from
[methamphetamine].’†He denied any
physical fighting between them but said Mother would sometimes get Elizabeth so
angry that she would punch holes in the wall of their home. The record also shows Mother often fought with
her brother Jason. In fact, the police
were called to the home several times to stop them from fighting.
On
October 3, 2012, the juvenile court found sufficient grounds to detain N.B. and
granted Mother monitored visitation for two hours twice a week. At the hearing, Mother’s attorney claimed
that since N.B. was detained, Mother had attended one Narcotics Anonymous (NA)
meeting and “has hit the ground running with respect to sobriety.â€
Over
the course of the next few weeks, N.B. was reported to be happy and healthy in
his foster home. Elizabeth was
considered a possible candidate for placement, but citing her “past history,â€
she refused to provide any clearance information to the social worker. Mother told the social worker it was “an eye
opener†for N.B. to be taken away from her.
She said she has been sober since then, and her anxiety has gone down
because she is no longer using drugs.
She also said she has enrolled in a perinatal program. As part of the program, she had begun attending
parenting and NA classes and working on a 12-step program. She also started attending group therapy and
undergoing drug testing. As expected,
her first few drug tests were positive, due to her past drug use, but since
then her tests have all been negative.
Her counselor reported she was adjusting to the perinatal program and
beginning to open up during her therapy sessions. She was described as cooperative and willing
to participate in services.
Visitation
with N.B. was somewhat of a mixed bag.
The visits were monitored by N.B.’s foster mother and also attended by
Elizabeth and Lee at times.
During one of the visits, Mother
brought along her boyfriend, even though he was not an authorized visitor at
that time. Mother also had trouble handling
N.B. at times and often gave him candy to get him to behave. And on one visit, Mother left early, saying
she had to catch a bus. Early on in the
case, the foster mother reported Mother “doesn’t have any parenting skills as
far as I can see.†However, she
subsequently reported that Mother was doing “OK, not bad†with N.B. Elizabeth tended to be rather erratic when
she attended the visits, so her visitation time was reduced. N.B. seemed happy to see his mother during
the visits and cried when she left.
However, after about five minutes, he was fine.
During
this period, Mother told the social worker she was looking for work and hoping
to enroll in community college. However,
she was still living with Elizabeth and Lee and relying on them for support. The social worker expressed concern that, in
light of past events, this environment might not be conducive for Mother to
overcome her problems. She did not
believe Mother was ready to have N.B. returned to her at this time.
At
the jurisdiction hearing on November 15, 2012, Mother submitted on the social
worker’s reports, and Father pleaded no contest. The juvenile court determined there was
sufficient evidence to support the allegation the parents had failed to protect
N.B. and he was at substantial risk of serious physical harm due to their
inability to do so. Therefore, it
assumed jurisdiction over N.B. and set a disposition hearing two weeks
out.
During
that fortnight, Mother continued to participate in her perinatal program and
visit N.B. regularly. Taking Mother’s
lead, Elizabeth also enrolled herself in a drug treatment program. She admitted using methamphetamine in the
wake of N.B.’s detention but claimed that, other than using marijuana for
medicinal purposes, she was committed to maintaining a sober lifestyle. Father displayed no such ambitions; he
repeatedly tested positive for drugs and failed to show up for many of his
scheduled visits with N.B.
At
the disposition hearing on November 28, 2012, Mother testified she was scheduled
to begin community college in January 2013.
Describing her progress in her perinatal plan, she said she had
completed seven substance abuse classes, four general counseling sessions and
meets regularly with her NA sponsor and her guidance counselor. She is halfway through the first step of her
12-step program. She also has completed
four parenting classes and attends self-help meetings whenever she can.
Mother
said the parenting classes have taught her how to set boundaries with N.B. and
communicate with him more effectively.
She said she is surrounding herself with sober people and cutting the
bad people out of her life. Although she
admitted she has had problems with Lee in the past, she denied having any
serious disagreements with Elizabeth. In
fact, she said she and Elizabeth get along “perfectly†now. Mother also denied ever being under the
influence around N.B. She said she
understands that drug use can impede a person’s parenting skills. And while she wants N.B. returned to her
care, she has learned from her treatment that it usually takes about four to
six months in treatment before a person is “good†and “solid†and has a “good
grasp†on their sobriety.
Elizabeth
testified she was N.B.’s primary caretaker before he was detained. She admitted to an extensive history of drug
use but claimed she only used methamphetamine once after N.B. was detained, and
before then, she had not used in about two years. She is currently enrolled in a nine-month
treatment program that includes substance abuse, parenting and anger management
classes. She said the program has taught
her how to communicate better with Mother and to live a healthier
lifestyle. Although she still uses
marijuana, it is doctor recommended to help alleviate her anxiety.
At
the conclusion of the disposition hearing, Mother’s attorney asked that N.B. be
returned to Mother under a family maintenance plan. However, county counsel and N.B.’s attorney
urged the court to keep N.B. in foster care and authorize continued reunification
services for Mother and Father, which is what the juvenile court decided to
do. While acknowledging Mother appeared
to love N.B. very much, the court determined it was in N.B.’s best interest to
remove him from her care. It denied
Mother’s request for return and set the matter for a six-month review hearing
on May 28, 2013.
I
Mother contends there is insufficient
evidence to support the juvenile court’s decision to establish jurisdiction
over N.B. We disagree.
“In juvenile cases, as in other areas of the law, the
power of an appellate court asked to assess the sufficiency of the evidence
begins and ends with a determination as to whether or not there is any
substantial evidence, whether or not contradicted, which will support the
conclusion of the trier of fact.†(
540, 547.) In making this determination,
“[w]e do not evaluate the credibility
of witnesses, reweigh the evidence, or resolve evidentiary conflicts.†(In re
L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Rather, we give respondent “the benefit of every reasonable inferenceâ€
and resolve all conflicts in favor of the trial court’s decision. (In re
Autumn H. (1994) 27 Cal.App.4th 567, 576.)
juvenile court assumed jurisdiction over N.B. pursuant to Welfare and
Institutions Code section 300, subdivision (b).
Under that section, jurisdiction is justified if “[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 failure
or inability of his or her parent . . . to adequately supervise or
(Welf. & Inst. Code, § 300, subd. (b).) The statute is designed not only to protect
child who have been abused or neglected but “‘to ensure the safety, protection,
and physical and emotional well-being of children who are at risk of that harm.’
[Citation.] ‘The court need not
wait until a child is seriously abused or injured to assume jurisdiction and
take the steps necessary to protect the child.
[Citation.]†(
Cal.4th __, __.)
Despite
all her past problems, Mother claims respondent failed to prove that, at the
time of the jurisdiction hearing, N.B. was at substantial risk of serious
physical harm due to her failings. While
she admits having drug, mental health and family issues, she insists there is
no evidence they jeopardized N.B.’s physical well-being or impeded her ability
to care for him.
In
so arguing, Mother compares herself to the parents in In re Destiny S. (2012) 210 Cal.App.4th 999 and
754, whose drug use was found not to warrant juvenile court jurisdiction over
their children. However, in the latter
case, there was no evidence the father was a drug abuser. In fact, his
authorized use of medical marijuana was so circumspect that it never interfered
with his work, caused him legal problems or hampered his ability to care for
his son. (Id. at pp. 763-769.) And
while the mother in the former case did use “hard drugs,†she remained a
positive force in her daughter’s life, kept their home free of drug
paraphernalia, and already had three months of sobriety under her belt by the
time of the jurisdictional hearing. (
at pp. 1002-1005.)
Mother’s
drug use was much more serious and deleterious than the parents in these two
cases. Not only did she use marijuana on
occasion, she was so addicted to methamphetamine she could hardly make it
through the day without a hit. Indeed,
Elizabeth reported Mother was on such a binge around the time N.B. was detained
that she and Lee had to assume nearly all of his childcare
responsibilities. And while Mother said
she never used drugs or was under the influence around N.B., she did bring drug
paraphernalia into the home and was twice arrested at the house for having
methamphetamine pipes in her possession.
Elizabeth, a long time drug user, was also arrested for having
methamphetamine and drug pipes at the house.
And by the time of the jurisdictional hearing, neither Mother nor
Elizabeth had been in drug treatment very long.
In fact, less than a month had passed since Mother first tested
clean.
What’s
more, substance abuse was not Mother’s only problem. Like Elizabeth, she is bipolar and suffers
from anxiety, yet she shirked the medications that were prescribed for
her. In 2008, she was hospitalized for
attempting to commit suicide, and she tried to kill herself again, by running
out into the street, just six months before N.B. was detained. While Mother downplays the volatility in the
household, her fighting with Elizabeth, Lee and Jason led to police
intervention on multiple occasions. And
unfortunately, N.B. was sometimes in the mix of things when tempers flared. For example, during the incident on May 7,
2012, Mother was holding N.B. in her arms when Lee physically moved her out of
the way of Elizabeth’s car. Then, after
Mother put N.B. down, she and Lee got into a physical altercation right there
in the driveway. Aside from the obvious
physical danger this posed to N.B., it must have been traumatic for him to see
his family engaging in such violent behavior.
While
there is no evidence N.B. was ever physically harmed or neglected, the law
“does not require that a child actually be abused or neglected before the
juvenile court can assume jurisdiction.â€
(In re I.J., supra, __
Cal.4th at p. __.) Rather, the evidence
need only show there is a “‘substantial risk’ that the child will be abused or
neglected.†(Ibid.) And although
“previous acts of neglect, standing alone, do not establish a substantial risk
of harm†(In re Ricardo L. (2003) 109
Cal.App.4th 552, 565), the court may properly consider conduct that predates
the jurisdictional hearing in assessing the risk of harm to the child. (In re
Janet T. (2001) 93 Cal.App.4th 377, 388; In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) Based on the evidence in this case, the
juvenile court could properly infer N.B. was presently at risk of serious physical
harm due to Mother’s history of drug use and unstable behavior. We therefore uphold its assumption of
jurisdiction over N.B.
II
Mother
also contends there is insufficient evidence to support the juvenile court’s
decision to remove N.B. from her care.
Again, we disagree.
Pursuant to Welfare and Institutions Code section 361,
subdivision (c)(1), the juvenile court may remove a dependent child from his
parents’ custody upon clear and convincing evidence of
a substantial danger to the child’s physical health or well-being if there are
no other reasonable means to protect the child.
Such an order “is proper if it is based on proof of parental inability
to provide proper care for the minor and proof of a potential detriment to the
minor 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.
[Citations.]†(
1127, 1136, overruled on other grounds in Renee
J. v. Superior Court (2001) 26 Cal.4th 735, 736.)
This standard has obvious parallels to the
jurisdictional issue discussed above.
Indeed, the juvenile court’s jurisdictional findings are prima facie
evidence the child cannot safely remain in his or her parent’s home. (In re
Hailey T. (2012) 212 Cal.App.4th 139, 146 (Hailey T.).) Nevertheless,
Mother argues N.B.’s removal was unjustified because he could have safely
remained in her care under a family maintenance plan. In so arguing, Mother relies on
In Hailey T.,
the juvenile court’s removal order with respect to a four-year-old girl was
reversed because the cause of her infant brother’s injuries were the subject of
sharp dispute, her parents had a good relationship, they did not have any
substance abuse problems and “there was no evidence [they] suffered from mental
health conditions, developmental delays or other social issues that are often
at the root of dependency cases and might place children at continuing risk in
the home.†(Hailey T., supra, 212 Cal.App.4th at p. 147.)
In contrast to the parents in Hailey T., Mother is afflicted with a variety of problems that have
impaired her ability to care for N.B. A
single teenage mother with mental health issues, she was addicted to drugs and
overwhelmed with the prospect of caring for N.B. Elizabeth and Lee did their best to take up
the slack, but the dynamics of the household were simply not conducive to
raising a two year old. The fighting and
the drug use among N.B.’s family members led to police involvement on many
occasions, and although Mother and Elizabeth have begun substance abuse
treatment, the case is still young. In
light of their past drug abuse and everything else that has happened in the
home since N.B. was born, the juvenile court was justified in removing him from
Mother’s care. Because the court’s
removal order enjoys substantial evidentiary support, we are powerless to
disturb it.
DISPOSITION
The
juvenile court’s jurisdictional and dispositional orders are affirmed.
BEDSWORTH,
J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
THOMPSON, J.
