In re Stephen T.
Filed 1/4/13 In
re Stephen T. CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re STEPHEN
T., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY
HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
JEFFREY T.,
Defendant and Appellant.
D062479
(Super. Ct. No.
NJ14044A)
APPEAL
from a judgment of the Superior Court of
County, Blaine K. Bowman, Judge. Affirmed.
Jeffrey
T. appeals following the jurisdictional and dispositional
hearing in the juvenile dependency case of his son, Stephen T. Jeffrey contends the jurisdictional findings
and the order removing Stephen from his custody are unsupported by substantial
evidence. We affirm.
BACKGROUND
In
September 2008, the San Diego County
Health and Human Services Agency (the Agency) filed a dependency petition
for newborn Stephen based on drug use by his mother, Georgia T., and Jeffrey
(together, the parents). Georgia
had a seven-year history of methamphetamine addiction and used drugs throughout
her pregnancy. Jeffrey had a history of
drug use and knew Georgia used drugs. He had a lengthy
criminal history, and when the petition was filed, he was serving a three-year
prison sentence for marijuana cultivation.
Stephen
was detained in a foster home. In
October 2008, the court made a true finding on the petition and ordered Stephen
placed in foster care. In September
2009, Stephen began a 60-day trial visit with Georgia
in the home of the maternal great-grandparents.
In November, the trial visit became a placement. In March 2010, Jeffrey was released from
prison and had his first supervised visit with Stephen. That month, the court terminated dependency
jurisdiction.
One
month after the case closed, Georgia
relapsed. The maternal
great-grandparents were aware of the relapse and of Georgia's
neglect of Stephen. The maternal
great-grandfather described Georgia
as "habitually high with meth, and the wildest driver." Georgia
lived in a home owned by the maternal great-grandparents, and the maternal
great-grandfather believed she was selling drugs from the home. The maternal great-grandparents contacted the
police in an attempt to protect Stephen and obtain help for Georgia,
and because they were concerned Georgia
might damage their property, but there was no report to the Agency. The maternal great-grandparents were
unwilling to become Stephens's guardians as the Agency had suggested. They took care of Stephen "on and
off" and allowed Jeffrey unsupervised visits.
In
February 2012, three-year-old "Stephen refused to be in [Georgia]'s
care and live in her home" and Georgia
"dropped Stephen off" at the maternal great-grandparents' home. The maternal great-grandmother described this
as a "permanent" arrangement and the maternal great-grandfather
described it as "custody." On
June 15, Georgia was arrested and jailed for possessing methamphetamine and drug
paraphernalia, being under the influence of a controlled substance and felony
child endangerment of Stephen's half brother, Jonathan F., born in November
2011.
On
June 20, 2012, Jeffrey told the Agency he had established paternity in family
court, paid child support and had unsupervised visits with Stephen every
Sunday. He had not requested custody
when he discovered Stephen was living with the maternal great-grandmother
because she and Stephen had a good relationship and Jeffrey "didn't want
to take Stephen away from her."
Jeffrey said he was in the process of requesting more visitation and a
family court hearing set for June 12 had been continued to July because Georgia
had not appeared. Jeffrey said he had
received a diagnosis of schizophrenia "many, many years ago," but he
had no symptoms and did not take medication.
He did not remember the details of his psychiatric and drug abuse
histories. He was unemployed and was
applying for Supplemental Security Income because he had back problems. Jeffrey asked that Stephen be placed with the
maternal great-grandmother or the paternal grandmother, and later said he
wanted Stephen to live with him when he found a home, although he acknowledged
he had little experience caring for children.
The Agency later learned Jeffrey had attempted suicide twice.
On
June 20, 2012, the Agency filed a dependency petition (Welf. & Inst. Code,
§ 300, subd. (b))
name="_ftnref1" title="">[1]
for Stephen. The petition alleged Georgia
used methamphetamine, marijuana and alcohol to excess. She admitted she had resumed drug use and
needed treatment. She was unable to care
for Stephen as a result of her drug use.
Jeffrey had failed and was unable to protect and supervise Stephen.
Stephen
was detained and the court allowed Jeffrey unsupervised daytime visits. Jeffrey admitted he had lived with Georgia
for a few months after his release from prison, had suspected she was using
drugs and had been worried about Stephen.
Jeffrey wanted Stephen to stay with the nonrelative extended family
member with whom he was detained.
On
June 22, 2012, Jeffrey tested positive for morphine, opiates, methamphetamine and
amphetamine. He said he was taking
"cold pills" and two prescribed medications, morphine and Vicodin,
but had not used methamphetamine for approximately one year. The laboratory reported the prescribed
medications would not cause a positive result for methamphetamine.
On
July 12, 2012, the court ordered that Jeffrey's visits would be supervised
pending the next hearing and issued a restraining order protecting Stephen's
caregiver and the maternal great-grandmother from Georgia. On July 16, Jeffrey attended Stephen's
immunization appointment. Stephen was
uncooperative, and Jeffrey "attempted to work with" him, but allowed
the caregiver to manage Stephen's behavior.
On July 19, Jeffrey took Stephen to a "Mommy and Me class,"
supervised by the caregiver. On July 20,
Jeffrey had a negative drug test. On
July 25, Georgia was arrested for illegally possessing ammunition, possessing a
stolen vehicle and possessing drug paraphernalia.
At
the time of the August 9, 2012,
Jeffrey was living with the paternal great-grandmother, and there was a bedroom
available for Stephen in the home.
Jeffrey had attended two sessions of individual therapy, was enrolled in
a parenting class and was in compliance with the terms of his parole. He was attending Narcotics Anonymous (NA)
meetings, but there was no evidence he had obtained a sponsor as the social
worker had recommended.
name="_ftnref2" title="">[2] Jeffrey's prescription medications barred him
from drug treatment programs. Georgia
had received no treatment.
The
court found Georgia had allowed the maternal great-grandparents to care for Stephen,
but there was no evidence it was a legal
placement. There was nothing to stop
Georgia from demanding Stephen's return and the maternal great-grandparents
would have no recourse. This would place
Stephen at risk. The court found the
allegations of the petition true by clear and convincing evidence.
The
court ordered Stephen removed from the parents' custody and detained with his
caregiver, and gave the Agency discretion to place Stephen with a relative,
including the maternal great-grandparents, upon approval of their home. The court ordered liberal supervised visits
for the parents, and gave the Agency discretion to allow weekend and overnight
visits with notice to Stephen's counsel, and a 60-day trial visit with the
concurrence of his counsel.
THE
JURISDICTIONAL FINDINGS
The
purpose of section 300 "is to provide maximum safety and protection for
children who are currently being physically . . . or
emotionally abused [or] neglected, . . . and to ensure the
safety, protection, and physical and emotional well-being of children who are
at risk of that harm."
(§ 300.2.) Section 300,
subdivision (b) allows a dependency when "[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 inability of the
parent . . . to provide regular care for the child due to
the parent's . . . substance abuse." Section 300 requires proof the child is
subject to the defined risk of harm at the time of the jurisdictional
hearing. (In re Savannah
A parent's " '[p]ast conduct may be probative of current
conditions' if there is reason to believe that the conduct will continue."
(In re S.O. (2002) 103 Cal.App.4th
453, 461.) The child need not have been
actually harmed for the court to assume jurisdiction. (See In
re James R. (2009) 176 Cal.App.4th 129, 135.) Jurisdiction is proper based on the neglect
and abuse of one parent, even if the other parent is capable of providing
appropriate care. (In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553-1554.)
In
the juvenile court, the Agency had the burden of proof by a preponderance of
the evidence. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318; § 355,
subd. (a).) Jeffrey now has the burden
of showing the jurisdictional findings are unsupported by substantial
evidence. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on
another ground by Renee J. v. Superior
Court (2001) 26 Cal.4th 735, 748, fn. 6.)
We view the record in the light most favorable to the juvenile court's
ruling. (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.)
Jeffrey
does not challenge the evidence showing Georgia
was unable to care for Stephen due to her substance abuse, but contends there
is not substantial evidence Stephen had suffered or was at substantial risk of
suffering serious physical harm or illness as a result of that substance
abuse. Jeffrey argues that on the date
of detention, Stephen had been in the maternal great-grandparents' custody for
four months, and it was speculative whether Georgia
would take Stephen from them. Jeffrey
also argues there was no evidence he was using drugs or had mental health
issues.
Substantial
evidence supports the jurisdictional findings.
Although the Agency's reports reflect statements by the maternal
great-grandparents they had "custody" of Stephen and the arrangement
was "permanent," there is no evidence they had legal custody or had
made any attempt to secure legal custody.
They were unwilling to seek guardianship. They were caring for Stephen only because Georgia
expressly permitted them to do so, and there is no evidence she intended the
arrangement to be permanent. On one
occasion, after Georgia left Stephen with the maternal great-grandparents, she returned for
him, the maternal great-grandparents allowed her to take him, and she later
returned him. When Georgia
was arrested in June 2012, she said the maternal great-grandparents had custody
of Stephen, but the day the petition was filed, she said she wanted him
back. Later, Georgia
said the children were not at risk in her care and had been taken from her
"illegally." She also said the
children had been taken from the maternal great-grandparents illegally, and she
wanted to "sober up and get the children back."
The
maternal great-grandparents had demonstrated their inability to protect
Stephen. They enabled Georgia's
drug use by providing her a home, where she engaged in drug activity, and by
paying to repair her car after one of her several accidents. After the first dependency case closed, the
maternal great-grandparents allowed Jeffrey unsupervised contact with Stephen
although they knew he used drugs.
Jeffrey was also unable to protect Stephen. He was aware of Georgia's
drug abuse but did nothing. He has a
history of substance abuse and a lengthy criminal history including violent and
drug-related offenses. He was on parole
at the time of the hearing, had a positive drug test just seven weeks earlier,
had not progressed beyond supervised visits and had just begun to address his
protective issues.
THE DISPOSITIONAL ORDER
For
Stephen to be removed from parental custody, the Agency was required to prove,
by clear and convincing evidence, "[t]here is or would be a substantial
danger to [his] physical health, safety, protection, or physical or emotional
well-being [if he] were returned home" and removal was the only reasonable
means of protecting his physical health (§ 361, subd. (c)(1)).
the minor need not have been actually harmed before removal is appropriate. The focus . . . is on
averting harm to the child." (
at p. 1136.) The court is entitled to
consider the parents' past conduct and current situation and gauge whether they
have progressed sufficiently to eliminate any risk. (In re
S.O., supra, 103 Cal.App.4th at p. 461; cf. In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1221.)
On
appeal, Jeffrey has the burden of showing there is no substantial evidence
justifying removal. (
establish a given fact, where the law requires proof of the fact to be clear
and convincing, is primarily a question for the trial court to determine . . . ." [Citations.]'
[Citation.] Thus, on appeal from
a judgment required to be based upon clear and convincing evidence, 'the clear
and convincing test disappears . . . [and] the usual rule
of conflicting evidence is applied, giving full effect to the respondent's
evidence, however slight, and disregarding the appellant's evidence, however
strong.' " (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881,
quoted in In re Mark L. (2001) 94
Cal.App.4th 573, 580-581.) "We do
not reweigh the evidence, evaluate the credibility of witnesses, or resolve
evidentiary conflicts." (
212, 228.)
Jeffrey
contends the court failed to consider reasonable alternatives to removal; there
was no evidence he presented a current risk to Stephen; and the court should
have returned Stephen to his custody with family maintenance services. Although the court did not expressly state
there were no reasonable alternatives, it adopted the Agency's recommendation
that it find there had been reasonable efforts to eliminate the need for
removal. Moreover, removal was the only
reasonable means of protecting Stephen, who was not quite four years old. Even before the inception of this case,
Jeffrey was aware of Georgia's drug use and worried about Stephen, yet did
nothing to protect him. Jeffrey had his
own substance abuse issues and a significant history of mental health problems
and crime. Only seven weeks before the
hearing he had a positive test for methamphetamine, yet denied recent
methamphetamine use. Although,
commendably, he was participating in services, he had just begun addressing his
protective problems, he had little experience caring for children and his
visits were supervised. Substantial
evidence supports the removal order.
DISPOSITION
The
judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL,
P. J.
HUFFMAN, J.
name="_ftn1" title="">[1] All further statutory references are to
the Welfare and Institutions Code.
name="_ftn2" title="">[2] The social worker suggested Jeffrey
attend NA meetings daily. Jeffrey agreed
to attend every day but Sunday, which he wished "to
keep . . . open for attending church and visiting
Stephen."
