In re S.P.
Filed 3/1/13 In re S.P. CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
In re S.P., a Person Coming
Under the Juvenile Court Law.
B242175
(Los Angeles
County
Super. Ct.
No. CK91453)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.R.,
Defendant and Appellant.
APPEAL from
orders of the Superior Court
of
County, D. Zeke Zeidler, Judge. Affirmed.
Boxer
McLaughlin and Robert McLaughlin, under appointment by the Court of Appeal, for
Defendant and Appellant.
Office of
the County Counsel, John F. Krattli, County Counsel, James M. Owens, Assistant
County Counsel and Navid Nakhjavani, Deputy County Counsel for Plaintiff and
Respondent.
I. INTRODUCTION
The mother,
E.R., appeals from the juvenile court’s June
13, 2012 jurisdictional and dispositional orders concerning S.P.,
the child, who is five years old. The
mother argues there was insufficient
evidence to support the juvenile court’s jurisdiction under Welfare and
Institutions Code section 300, subdivision (b).
child and argues the minor was not at risk of serious physical harm as a result
of the father’s drug use. The mother
also challenges the dispositional order.
She contends the juvenile court abused its discretion in ordering her to
attend a parenting class. We affirm the
orders under review.
II. PROCEDURAL HISTORY
On January
17, 2012, the Department of
Children and Family Services (the department) filed a section 300 petition
on behalf of the child. The petition
alleges: the child’s father, David P.,
had a 16-year history of drug use which rendered him incapable of providing the
child with regular care and supervision; the father possessed, used and was
under the influence of heroin while the child was in his supervision and care;
the mother knew of the father’s illicit drug use and failed to protect the
child; and the father’s drug use endangered the child’s physical health and
safety and placed her at risk of physical harm and damage.
At the January 17, 2012 detention hearing, the juvenile court
ordered the child detained from the father and released to the mother under the
department’s supervision. The father was
granted monitored visits. The department
was ordered to provide the parents with referrals for any recommended programs. In addition, the department was ordered to
refer the father for weekly random drug and alcohol tests. Also, the department was to refer the mother
for twice monthly random and on-demand drug testing.
At the June 13, 2012 jurisdiction and disposition hearing, the
trial court found the child was a dependent of the court under section 300,
subdivision (b). The juvenile court
sustained the following count in the section 300 petition: The [child’s father] has a sixteen year
history of illicit drug use and is a recent user of heroin [and]
methamphetamine, which renders the father incapable of providing the child with
regular care and supervision. On at
least one prior occasion, the father possessed, used, and was under the
influence of heroin, while the child was in the father’s care and supervision. The child’s mother . . . knew of the father’s
illicit drug use and failed to protect the child. . . .
Such illicit drug use by the father endangers the child’s physical health and
safety and places the child at risk of physical harm, damage and failure to
protect.â€
The juvenile court placed the child in the
mother’s custody and ordered the department to provide family maintenance
services. The mother was ordered to
complete a parenting education program.
The father was ordered to complete:
a full drug and alcohol program with aftercare; weekly random and
on-demand drug and alcohol testing; and parenting education and individual
counseling to address case issues. The
father was granted monitored visits with the child. In addition, the department was ordered to
address the possibility of jurisdiction termination in its next report.
The mother
filed her notice of appeal on June 14,
2012.
III EVIDENCE
A. Detention Report
The January
17, 2012 detention report was prepared by Children’s Social Worker
Callie Woodard. On December 20, 2011, the department received a
referral alleging substance abuse by the father and his girlfriend, Rebecca
W. The father and his girlfriend came to
the department’s attention after she gave birth to their son, Jason W. Jason W. was born testing positive for
opiates. During the course of that
investigation, the father reported he had frequent, unmonitored visits with
S.P. about two to three times weekly at his house.
On January 5, 2012, Ms. Woodard received a
referral for the child. The referral was
based on concerns for the child’s safety.
The reporting party was concerned about the father and Rebecca’s
admitted drug use and her mental health history. The reporting party was also concerned about
the allegedly hazardous condition of the father’s home. Ms. Woodard met with the mother and the child
at their home.
The mother admitted she was aware of the
father’s current and past drug use. The
mother admitted using drugs with the father.
This occurred before she became pregnant with the child. The mother stopped using drugs when she found
out she was pregnant and had not used any controlled substances since. The mother believed the father’s drug
addiction had escalated in recent years.
But the mother did not believe this addiction impacted the child. This was because the child rarely saw the
father. According to the mother, the
child was not left alone with the father.
Most of the visits took place outside the father’s home or in the
maternal grandmother’s residence. The
mother did not see the father using drugs but witnessed him “coming down from a
high†during his visits with the child.
The mother stated the child had not been left alone with the father
since June 2010. On that occasion, the
child was alone with the father for a brief period of time. When the maternal grandfather learned of the
visit, he became so concerned that he immediately picked up the child.
The child stated she was in
kindergarten. She initially stated she
was not alone during her visits with her father. When asked a second time, the child reported
she was alone with her father during visits.
According to Ms. Woodard, “[The child] stated she once slept over
at her father’s home and her mother picked her up from home ‘when the sun came
up.’†The child stated the father never
hit her and denied seeing him use drugs.
But, she also confirmed she did not know what drugs are and what they
look like.
Ms. Woodard also spoke with Juan S., the
mother’s boyfriend. Mr. S. has
known the mother for four years and the child for three of those years. He currently lives with the mother and child
in his home. Mr. S. observed
several visits between the father and the child. Mr. S. drove the mother and the child to
the visits. He stated the visits were
very brief and always outside the home.
During the visits, Mr. S. did not notice any drug use by the
father. He described the mother as “a
very loving parent†although a little lenient.
Mr. S. witnessed the mother spank the child’s bottom with an open
palm. But he had not seen the mother
otherwise hit or abuse the child.
On January 6, 2012, Ms. Woodard spoke with
the father. The father was very
hostile. He cursed and threatened
her. In addition, the father denied Ms.
Woodard access to his home. The father stated
he had recently stopped using heroin.
When the father visited the child in the past, he had always tried to
take drugs prior to seeing the child so he would not have to ingest them during
the visit. He admitted once he had
injected heroin while in the room with the child because he had not “timed it
right†and was coming down from his last high.
The father stated he saw the child whenever he wanted to by calling the
mother. He also stated he had visited
alone with the child and often the visits were unmonitored. The father said the child did not sleep over
at his home.
Ms. Woodard observed the father showed
various signs of drug use and active intoxication. The father was swaying back and forth
throughout the interview. He had sores
on his forehead and mouth and twitching facial features. The father was extremely hostile and
exhibited erratic behavior. In addition,
Ms. Woodard noticed the father had a small circular band aid on the top of
his hand and injection marks on his forearms.
Ms. Woodard observed the father’s home was dark and smelled
strongly of cigarette smoke.
On January 6, 2012, Ms. Woodard called
the mother. Ms. Woodard inquired
about the father’s statements that he saw the child several times per week and
that some of those visits were unmonitored.
The mother stated she did not understand why the father would say
this. The mother said the father only
visited the child one to two times per month and the visits are always
monitored. But the mother admitted the
father was allowed unmonitored visits at his home until about one year
ago. The mother admitted dropping the
child off at the father’s home when there was no other available
childcare. But the mother characterized
leaving the child with the father only as a “last resort†option. The last time the mother allowed the father
an unmonitored visit, the maternal grandfather became worried about the child’s
safety. The maternal grandfather immediately
retrieved the child from the father’s home.
Ever since the mother moved in with her boyfriend about a year ago, she
no longer relied on the father as a method of childcare. The mother was asked about the father’s drug
use in front of the child. The mother
responded that she was unaware of it.
The mother knew about the father’s drug use but “felt bad†for him. The mother wanted to “give him a chance†to
be a father. She did not have safety
concerns about the child’s visits with the father. This was because the visits are now monitored
and very brief. The mother did not
believe the child knew the father is using drugs. This was because the child is only five-years
old.
On January 8, 2012, Children’s Social Worker
Eva Zendejas spoke with the maternal grandmother, A. A., by phone in
Spanish. The maternal grandmother cares
for the child while the mother is at work.
Ms. A. has never taken the child to visit the father. Ms. A. did not know if the mother took
the child to visit the father.
Ms. A. reported the child was never left alone with the father
because the mother is present during the visits. Ms. A. advised the mother to “not leave
the child and father alone†because of his drug addiction. Ms. A. stated the mother is attentive to
the child. Ms. A. had no abuse or
neglect concerns when the child is in the mother’s care.
Ms. A. stated the child rarely saw the
father. As far as Ms. A. knew, the
child saw the father about two months ago.
The father and his girlfriend came to the home to visit the child. The father visited for about 5 to 10
minutes. He hugged and greeted the
child, handed the mother $100 and left.
The
maternal grandmother did not know about the father’s drug use. Ms. A. stated: “I don’t know anything about that. I have no contact with him.†Ms. Zendejas discussed Ms. A.’s recollections of
the mother's drug usage: “[T]he maternal
grandmother stated that the mother stopped using drugs when she found out she
was pregnant, over 5 years ago. The
maternal grandmother stated she spoke to the mother and advised her to stop
using. The maternal grandmother
confirmed that the mother did not participate in a substance abuse program and
that ‘she stopped on her own.’â€
On January
9, 2012, Ms. Woodard spoke with the mother. Ms. Woodard requested that the mother
complete a drug test that day. This was
because of the mother’s past drug use.
The mother refused, stating she would not make it to work on time if she
took the drug test. The mother refused a
second drug test request the next day, citing the same reason. Ms. Woodard stated she would document
this refusal. In response, the mother
expressed frustration over the department’s involvement with her family and its
drug test requests. The child appeared to be
afraid of losing her father. The child
was asked about visits with the father.
The child was asked whether Mr. S. stayed during the visits with her
father. Ms. Woodard described the
child’s response, “[The child] diverted her eyes downward and stated, ‘I don't
know.’â€
On the same day, Ms. Woodard again
interviewed the child at her school. The child was reticent and
evasive when discussing the father. The
child was asked if anybody had asked her not to discuss the father. The child responded “mommy†but refused to
elaborate. Ms. Woodard described
what happened when the child was asked a second time about being advised not to
discuss the father: “When asked again if
anyone had told her not to talk about her father, [the child] stated ‘I don't
know.’ To any further questions about
her father, [the child] responded by avoiding eye context and stating ‘I don’t
know.’â€
Ms. Woodard requested a removal order
from the father, which was granted by the juvenile court. On January 11, 2012, at 11:30 a.m.,
Ms. Woodard visited the father’s home with another social worker and two Los
Angeles Police Department officers. They
were present to serve a copy of the removal order on the father. The paternal grandfather answered the door,
wrapped in a blanket. He demanded to
know why they were at the home. When
Ms. Woodard replied the matter was confidential and requested to speak
with the father directly, the paternal grandfather grew agitated. The paternal grandfather stated he would not
cooperate with the department.
Ms. Woodard described the paternal grandfather’s angry response,
“[The paternal grandfather] became increasingly agitated and stated that he was
not going to comply with [the department] any longer due to his newborn
grandson Jason being removed from [the] father’s care.†The paternal grandfather continued, “[T]hey
won’t allow me to bring Jason home because [the father] is living here but
that’s not going to change.†The
paternal grandfather complained the department was bringing S.P. into “this
mess†for no reason. The paternal
grandfather said the child rarely saw the father. The paternal grandfather accused
Ms. Woodard of harassing the mother and child. The paternal grandfather stated he had
recently spoken by phone with the mother.
The father later came to the door, wearing
dark sunglasses. He had his arms clasped
across his chest, concealing his forearms.
The father had a tremor and shook as he attempted to light a
cigarette. He became angry and cursed
several times when served with a copy of the removal order.
Ms. Woodard later spoke by phone with
the mother about the removal order. The
mother stated she understood the conditions of the removal order and would not
allow contact between the child and the father.
Ms. Woodard asked the mother to take a drug test the next day. Ms. Woodard explained the mother’s
refusal: “[The mother] stated that she
had obtained in attorney and had spoken with an attorney regarding a drug
test. [The mother] reported that her
attorney had informed her that she did not need to do a drug test as there were
currently no allegations against [the] mother.â€
Ms. Woodard stated she would document the refusal to take a drug
test. The mother believed the department
was making a “huge†deal out of the referral and again expressed her
frustration over the situation. The mother
later contacted Children’s Social Worker Laura Mejia. The mother stated she did not understand why
she had to attend the detention hearing.
The mother eventually agreed to attend with the child.
B. Jurisdiction/Disposition Report
The February 23, 2012 jurisdiction and
disposition report was prepared by Children’s Social Worker Deirdre Evans. On February 9, 2012, Ms. Evans interviewed
the mother and the child at their home.
Ms. Evans attempted to interview the child about the father. But the child was nonresponsive when
questioned about her father. When the
child was asked how many times she visited her father, she responded, “Do you
want to see my book bag?†When asked a
second time, the child replied: “I don’t
know maybe one time. I don’t really
know.†When asked what she did when she
visited her father, the child stated, “My daddy cooks for me and I watch
TV.â€
The mother stated: “The one time [the child] was over there [the
paternal grandfather] was there. I think
some things were taken out of proportion.
He’s never showed any kind of hardness to her. She has always been supervised when she goes
over to her father’s home. We always
establish he’s sober prior to the visit.â€
When asked how she established the father’s sobriety, the mother
responded: “Well, when I call him on the phone I can tell. When I see him I can tell if he’s ok or
not. He’s more active, more skittish
when he’s on it. I can tell when he’s
normal. The times we go see him it’s
about ten to fifteen minutes. I’m always
there. When [the child] was there she
was picked up right away by my father.â€
When asked why the maternal grandfather picked up the child from the
father’s home, the mother explained, “Well, my father knows about David and he
doesn’t feel comfortable with [the child] being over there visiting her
father.â€
Mr. S. stated: “I’ve met the guy [the father] a few times
and I did not notice anything out of the ordinary with him. I would always drive [the child] over to meet
her father. We always parked out in
front of the home. [The father] usually
would come out to talk to [the child] for a few minutes and then we would
leave. I never noticed the guy under the
influence of any drugs. He’s always
respectful to me. [The child] was
dropped off one time to her father’s home and [the maternal grandfather] drove
over to pick up [the child] because he did not feel comfortable with his
granddaughter at [the father’s] home.â€
C. Jurisdiction And Disposition Hearing
At the June 13, 2012
jurisdiction and disposition hearing, the mother offered the following
stipulated testimony: “[O]ther than a
single instance in mid-2010, the only time that father has had an unmonitored
visit with [the child]; that all other visits have always been monitored by
relatives or herself . . . ; that she’s been protective of [the child] in her
contact with the father.†Counsel for
the department stipulated to these facts.
In addition, the juvenile court heard
testimony from the father. He admitted
he had a 16-year history of illicit drug use and was a recent user of heroin
and methamphetamine. The father stated
the mother knew of his drug use. He
testified, “Every time I would show up to see my daughter she would let me --
she made sure that she could tell that I was not under the influence or rather
sober enough to have a good visit with my daughter and not let it affect our
relationship.†Also, the father admitted
on one occasion he used heroin while the child was in his care. He explained:
“On one occasion I did start to come down. I had to actually do a little so that I
wasn’t pooping all over myself while I was trying to have visitation with my
daughter . . . .â€
The father testified this unmonitored visit happened about two year
ago. The father stated there had not
been any unmonitored contact between him and the child since then.
IV. DISCUSSION
A. Standard of Review
We review the juvenile court’s
jurisdictional findings for substantial evidence. (In re
E.B. (2010) 184 Cal.App.4th 568, 574-575; In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) Substantial evidence is relevant testimony or
documents which adequately support a conclusion.
It is evidence which is reasonable in nature, credible, and of solid
value. (
575; In re J.K., supra, 174
Cal.App.4th at p. 1433.) We draw all reasonable inferences from the
evidence to support the juvenile court’s findings and orders. We adhere to the principle that fact, weight
and credibility issues are the province of the juvenile court. (In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re Ricardo L. (2003) 109
Cal.App.4th 552, 564.) At the
dispositional hearing, the juvenile court has broad discretion to determine the
child’s best interest and to fashion a dispositional order accordingly. (In re
Drake M. (2012) 211 Cal.App.4th 754, 770; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) We review the dispositional order for an
abuse of discretion. (
Cal.App.4th at p. 770; In re Christopher
H., supra, 50 Cal.App.4th at p. 1006.)
B. Jurisdictional Finding Under Section 300
Section 300, subdivision (b) states: “Any
child who comes within any of the following descriptions is within the
jurisdiction of the juvenile court which may adjudge that person to be a
dependent child of the court: [¶]
. . . (b) The 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 or guardian to
adequately supervise or protect the child . . . .†Section 355, subdivision (a) provides:
hearing, the court shall first consider only the question whether the minor is
a person described by Section 300. Any legally admissible evidence that is relevant to the
circumstances or acts that are alleged to bring the minor within the
jurisdiction of the juvenile court is admissible and may be received in
evidence. Proof by a preponderance of
evidence must be adduced to support a finding that the minor is a person
described by Section 300 . . . .†To establish jurisdiction under section
300, subdivision (b), the department must prove by a preponderance of the
evidence that: there was neglectful
conduct by the parent in one of the specified forms; causation; and “serious
physical harm or illness†to the child; or “substantial risk†of such a
detriment. (In re B.T. (2011) 193 Cal.App.4th 685, 692; In re Ricardo L., supra, 109 Cal.App.4th at p. 567;
820.)
The mother argues the juvenile court’s
jurisdictional order was not supported by substantial evidence. The mother contends there was no evidence the
child was physically harmed as a result of the minor’s exposure to the father’s
drug use. She also argues there is no
current risk of harm to the child.
But jurisdiction is proper based on the
sustained allegation against the father, which the father does not
contest. The child is a dependent of the
court if the conduct of either parent endangers the child in the manner
described by one of the subdivisions of section 300. (In re
I.A. (2011) 201 Cal.App.4th 1484, 1491-1492; In re X.S. (2010) 190 Cal.App.4th 1154, 1161; In re P.A. (2007) 155 Cal.App.4th 1197, 1212.) The Court of Appeal has explained: “[I]t is irrelevant which parent created
those circumstances. A jurisdictional
finding involving the conduct of a particular parent is not necessary for the
court to enter orders binding on that party once
established.†(In re I.A., supra, 201 Cal.App.4th at p. 1492; In re
Alexis H. (2005) 132 Cal.App.4th 11, 16.)
In addition, there was substantial evidence
to support the allegation that the mother “knew of the father’s illicit drug
use and failed to protect†the child.
The father has a 16-year history of illicit drug use and is a recent
user of heroin and methamphetamine. The
mother was aware of the father’s drug use.
She also admitted the father was allowed unmonitored visits with the
child at his home until about a year ago.
The father reported he had frequent unmonitored visits with the child
about two to three times weekly at his home.
The father stated he saw the child whenever he wanted to by calling the
mother. The father also admitted he once
used heroin while the child was under his care because he was coming down from
his high. The father stated that he
“always†tried to use drugs prior to the child visiting him so he would not
have to ingest them during the visit.
The five-year old child acknowledged she had unmonitored visits with her
father. The child stated once she slept
over at her father’s home. The child was
not picked up until the next day after “the sun came up.†The juvenile court’s jurisdictional findings
under section 300, subdivision (b) are supported by substantial evidence.
C. Disposition Order
Section 362, subdivision (a) provides, “If a child is adjudged a dependent child of
the court on the ground that the child is a person described by Section 300,
the court may make any and all reasonable orders for the care, supervision,
custody, conduct, maintenance, and support of the
child . . . .â€
Section 362, subdivision (c) states:
“If a child is adjudged a
dependent child of the court, on the ground that the child is a person
described by Section 300, and the court orders that a parent or guardian shall
retain custody of the child subject to the supervision of the social worker,
the parents or guardians shall be required to participate in child welfare
services or services provided by an appropriate agency designated by the
court.â€
provides: “The juvenile court may direct
any reasonable orders to the parents or guardians of the child who is the
subject of any proceedings under this chapter as the court deems necessary and
proper to carry out this section . . . . That order may include a direction to
participate in a counseling or education program, including, but not limited
to, a parent education and parenting program operated by a community college,
school district, or other appropriate agency designated by the court. A foster parent or relative with whom the
child is placed may be directed to participate in such a program in cases in
which the court deems participation is appropriate and in the child’s best
interest. The program in which a parent
or guardian is required to participate shall be designed to eliminate those
conditions that led to the court’s finding that the child is a person described
by Section 300.â€
The mother argues it was an abuse of
discretion to order her to attend a parenting class. The mother contends as the non-offending
parent, her parenting capacity is not at issue.
She argues parenting education is not designed to eliminate the father’s
drug use; the condition which led to the dependency action. We find no abuse of discretion in requiring
the mother to attend the parenting class.
It is undisputed the father has a serious substance abuse problem. The mother knew of the father’s drug use but
allowed him unmonitored visits with the child.
The mother admitted witnessing the father “coming down from a highâ€
during his visits with the child. On one
occasion, the mother left the child alone with the father until the maternal
grandfather retrieved the youngster.
This was because the maternal grandfather was concern about the minor’s
safety. The father also admitted he once
self-administered heroin while in the room with the child during an unmonitored
visit. And the father admitted using his
drugs before visits so he would not have to ingest them in the child’s
presence. The parenting education order
was well within the juvenile court’s discretion.
V. DISPOSITION
The
jurisdictional and dispositional orders are affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P. J.
We concur:
ARMSTRONG,
J.
KRIEGLER,
J.
and Institutions Code unless otherwise indicated.
