In re Savannah C.
Filed 6/5/13 In
re Savannah C. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
>
In re SAVANNAH C., a Person Coming Under the Juvenile Court Law. | |
KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. AMANDA G., Defendant and Appellant. | F065398 (Super. Ct. No. JD128389-00) |
THE
COURT
title="">*
APPEAL from orders of the Superior
Court of Kern
County. Jon E. Stuebbe, Judge.
Mitchell Keiter, under appointment
by the Court of Appeal, for Defendant and Appellant.
Theresa A.
Goldner, County Counsel, and Kelley D. Scott, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Amanda G.
(mother) appeals from the juvenile court’s orders and findings at the
jurisdiction and disposition hearings that it has jurisdiction over her
daughter, Savannah C., born in March 2012.
Mother contends there was insufficient
evidence at the jurisdiction hearing to sustain allegations in the petition
filed pursuant to Welfare and Institutions Code section 300, subdivision (j).
orders.
FACTS AND PROCEEDINGS
On March
26, 2012, a juvenile dependency petition
was filed pursuant to section 300 with two counts on behalf of Savannah C.
first count was made pursuant to section 300, subdivision (b), alleging a
failure to protect because Savannah was at substantial risk to suffer physical
harm or illness due to mother’s inability to provide regular care because she
suffers from mental illness
and substance abuse. Mother’s mental
illness began when she was a teenager and remained untreated. It was alleged that although a psychiatrist
had recommended a course of treatment, mother failed to seek treatment.
The second count was made pursuant
to section 300, subdivision (j), stating that Savannah was at risk because her
sibling, S.S., who was 14 months old when Savannah was born, had been the
subject of a dependency action in 2011 resulting in a finding of jurisdiction
in June 2011 and a disposition in August 2011.
S.S. had been abused or neglected within the meaning of section 300,
subdivision (b) because mother could not provide S.S. with regular care due to
substance abuse. Mother was to undergo a
psychological evaluation. Mother was
granted reunification services for S.S., but had not completed important
components of her plan by the time Savannah was born. Among the components not completed were
counseling and submitting to regular drug and alcohol testing.
On May 7, 2011, S.S., who was then
three months old, was taken from mother’s custody while mother was under the
influence of alcohol and methamphetamine.
Mother had previously lost custody of five other children born between
2001 and 2009 in another state. Mother
admitted using methamphetamine and smoking marijuana and had abused alcohol for
13 years. On June 16, 2011, the juvenile
court sustained allegations as to S.S. filed pursuant to section 300,
subdivision (b). Mother was granted six
months of reunification services as to S.S. on August 17, 2011. Mother was ordered to participate in services
for anger management, parenting, substance abuse, and mental health counseling,
including psychotropic medication
management. Mother was to submit to
drug and alcohol testing on a monthly basis.
Review hearings for S.S. were continued in February and March of
2012.
After Savannah was born, mother
reported to social workers that she no longer drank or used illegal drugs. Mother had attended 21 of 30 Narcotics
Anonymous meetings, but asserted there was a discrepancy and she had lost her
attendance card. Mother believed she
only needed to attend four additional anger management classes. Mother discussed her history with depression,
but could not remember the names of medications she had been prescribed. Mother explained that she was attending
individual counseling.
Between November 1, 2011, and April
10, 2012, mother was scheduled for 15 drug tests. Mother had six negative tests and eight
failures to drug test. Failure to take a
drug test was presumed to be a positive test.
2012 and a presumptively positive test for failure to test on April 19,
2012. Between May 8, 2012, and June 19,
2012, mother had seven negative drug tests.
Social workers recommended to mother that she enter a new substance
abuse program. Just prior to the
jurisdiction hearing on June 29, 2012, however, mother had not yet enrolled
into a new substance abuse program and told her social worker she did not agree
to do so.
Mother was evaluated by a
psychologist on April 19, 2012, and a physician on June 25, 2012. Mother was diagnosed with major depression,
anxiety, a mood disorder not otherwise specified, alcohol abuse disorder,
substance abuse disorder, and borderline intellectual functioning. The physician found mother to be stable and
did not prescribe her any medication. By
June 2012, mother had completed many of the services ordered under her
reunification plan with S.S., including parenting classes, anger management
classes, and assessments for mental health and substance abuse.
Prior to the jurisdiction hearing,
mother’s counsel filed a brief stating mother intended to submit the matter on
the section 300, subdivision (j) allegations, but argue that the section 300,
subdivision (b) allegations were not true based on any current risk. Mother’s counsel limited his argument that
there was no current risk to the section 300, subdivision (b) allegations. A form waiving the mother’s rights to a
contested jurisdiction hearing on the section 300, subdivision (j) allegations
was attached to her counsel’s brief.
The social worker’s report
recommended the court find mother knowingly, intelligently, freely, and
voluntarily waived her rights and that the allegations of the section 300,
subdivision (j) count were true and that Savannah is a person described by
section 300, subdivision (j) of the Welfare and Institutions Code.
The jurisdiction hearing for
Savannah was conducted on June 29, 2012.
Most of the hearing was devoted to a review of the petition involving
S.S. With regard to Savannah, mother’s
counsel limited his argument to his belief that the section 300, subdivision
(b) allegations were not sustainable because there was no evidence of current
risk. Mother’s counsel pointed out that
the department’s case plan for mother was working and the department had
provided good services. Regarding the
section 300, subdivision (b) allegations, mother’s counsel argued that the
psychiatrist, who had recently examined mother, concluded she was stable and no
medications were prescribed for her.
Mother’s counsel requested mother
be placed on family maintenance services, noting that mother’s risk of neglect
in S.S.’s case was due to mother’s substance abuse. Counsel requested if the juvenile court
required further drug testing of mother, that she not be ordered to further
counseling unless she had an unexcused missed or positive drug test.
The juvenile court noted that
Savannah was “a person described by [s]ection 300, and I’m going to find only
(j). I think I can concur with the
discussion that indicates, that it has to be a current risk. [¶] …
so it will be a 300 (j) of the W & I Code.â€
The juvenile court found that Savannah was a person described by section
300, subdivision (j). The court did not
find the section 300, subdivision (b) allegations to be true.
The social worker’s report for the
disposition hearing noted that although mother had completed most of her
reunification services for S.S., she had seven presumptively positive drug
tests and had been advised by the department that she needed to enter into a
new substance abuse treatment program.
The department recommended family reunification services be provided to
mother and Savannah’s presumptive father, Michael C. The department further recommended that
mother continue to submit to random, unannounced drug tests.
At the disposition hearing on July
25, 2012, mother’s counsel argued that mother had finished most of her services
and should be placed on family maintenance for Savannah. The department’s counsel argued that mother
had seven failures to drug test and the department had serious concerns about
the mother’s ability to reunify.
The court accepted the department’s
recommendations, ordering mother to continue to test for drugs and
alcohol. The court did not order further
substance abuse counseling unless mother failed to test or tested positive. The court adjudged Savannah to be a dependent
child, finding clear and convincing evidence of a substantial danger to her
physical health, safety, physical or emotional well-being.
progress toward alleviating or mitigating the causes for Savannah’s out-of-home
placement. The court ordered
reunification services for mother.
DISCUSSION
Mother
contends that because there was no current risk of detriment pursuant to
section 300, subdivision (b), there was necessarily no current risk to Savannah
under the section 300, subdivision (j) allegations. Mother also contends there was insufficient
evidence to support the juvenile court’s order removing Savannah from mother’s
custody.
The department contends mother has
forfeited any challenge to the sufficiency of evidence to support the petition
by admitting the allegations set forth pursuant to section 300, subdivision
(j), and alternatively, that there was substantial evidence to support the
juvenile court’s finding that Savannah was at risk pursuant to section 300,
subdivision (j). We agree with the
department that there is substantial evidence to support the juvenile court’s
jurisdiction and disposition findings.
Forfeiture
Because
mother submitted the matter based on the section 300, subdivision (j)
allegations in the petition and the social worker’s reports, the department
argues mother was admitting the truth of the allegations and the factual basis
for the allegations. The department
argues mother reserved her challenge only to the section 300, subdivision (b)
allegations and that her counsel conceded during his arguments at the
jurisdiction hearing that any risk to Savannah was from mother’s substance
abuse problems. On the other hand,
mother did argue for family maintenance services and sought an order that she
not attend further drug treatment programs unless she had a positive drug test
or failed to drug test. Mother did not
accept all of the department’s recommendations.
Where a parent submits the matter
on the social agency’s recommended findings and orders, the parent waives the
right to challenge the sufficiency of the juvenile court’s orders on
appeal. (In re Richard K. (1994) 25 Cal.App.4th 580, 587-590.) Where the parent submits the matter on the
social worker’s report, the parent preserves the right to challenge the
sufficiency of the evidence and record on appeal. (In re
Ricardo L. (2003) 109 Cal.App.4th 552, 565-566; In re Tommy E. (1992) 7 Cal.App.4th 1234, 1236-1238.)
The
question of waiver, or forfeiture, is close in the instant action because
mother essentially admitted the section 300, subdivision (j) allegations. Mother did not, however, completely submit
the matter on the department’s recommended findings and orders. Mother generally submitted the matter on the
social worker’s reports and argued for changes in some of the department’s
recommendations. On this record, we find
that mother has not forfeited the question of whether there was substantial
evidence to support the petition on appeal.
Substantial Evidence
At the
the matter on the section 300, subdivision (j) allegations and the social
workers’ reports. Mother’s counsel
focused his argument on mother’s contention that the section 300, subdivision
(b) allegations were not based on any current risk. Mother’s argument on appeal in effect states
that there was no current risk for either of the allegations. Although the juvenile court stated there was
no current risk, it is clear the court was referring only to the section 300,
subdivision (b) allegations, not to the subdivision (j) allegations. We decline mother’s invitation to interpret
the juvenile court’s finding as a finding that there was no current risk to
either of the allegations.
Mother ignores the very different
factual aspects between the two allegations.
The section 300, subdivision (b) allegations concerned mother’s history
of mental health problems. The section
300, subdivision (j) allegations, in contrast, focused on mother’s past and
current drug and alcohol abuse. The two
allegations were aimed at two entirely different factual problems related to
Savannah’s risk of detriment under mother’s care.
Challenges to a juvenile court’s jurisdictional findings
are reviewed for substantial evidence. (
1635, 1649.) Substantial evidence is
evidence that is “‘reasonable, credible and of solid value’†such that a
reasonable trier of fact could make such findings. (In
re Christina A. (1989) 213 Cal.App.3d 1073, 1080.) “We review the record to determine whether there is any
substantial evidence, contradicted or not, which supports the court’s
conclusions.†(In re Kristin H.,
supra, at p. 1649.) “‘All conflicts
must be resolved in favor of the respondent and all legitimate inferences
indulged in to uphold the verdict, if possible.’†(Ibid.) Issues of fact and credibility are questions
for the trial court and it is not our function to redetermine them. (In re
Rubisela E. (2000) 85 Cal.App.4th 177, 194-195 [overruled on another ground
in In re I.J. (2013) 56 Cal.4th
766].)
There was no doubt, and indeed mother’s counsel conceded,
that mother’s substance abuse problem caused the detention of S.S. Mother had several failures to submit to drug
tests, which were presumed to be positive.
Several of mother’s failures to submit to drug testing occurred in the
time frame of Savannah’s birth. At least
two of these occurred after Savannah was born.
Given her long history of substance abuse and mother’s presumptively
positive tests just before and after Savannah’s birth, there was substantial
evidence to support the juvenile court’s finding that the section 300,
subdivision (j) allegations were true. We
reject mother’s argument that there was no current risk of detriment and/or the
juvenile court failed to find a current risk of detriment on the section 300,
subdivision (j) allegations.
On a challenge to the juvenile court’s findings resulting
in the removal of a child at the disposition hearing, we apply the substantial
evidence test. (In re Henry V. (2004) 119 Cal.App.4th 522, 529.) In doing so,
record in the light most favorable to the challenged order, drawing all
reasonable inferences in support of that order.
(In re Javier G. (2006) 137
Cal.App.4th 453, 462-463.) Further,
appellant bears the burden of showing there is no evidence of a sufficiently
substantial nature to support the removal order. (In re
L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
In light of the evidence, as summarized above, we conclude substantial
evidence supports the juvenile court’s removal order.
DISPOSITION
The
juvenile court’s orders are affirmed.
name="_ftn1" title="">* Before Cornell, Acting P.J.,
Poochigian, J., and Franson, J.
name="_ftn2" title="">[1] Unless
otherwise designated, all statutory references are to the Welfare and
Institutions Code.
