In re S.W.
Filed 1/16/13 In
re S.W. CA2/7
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re S.W.,
a Person
Coming Under the Juvenile
Court Law.
B240966
(Los Angeles County
Super. Ct. No. CK90610)
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
K.S.,
Defendant and Appellant.
APPEAL
from an order of the Superior Court of
County, Patricia Spear, Judge.
Reversed.
Patti
L. Dikes, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Kim
Nemoy, Principal Deputy County Counsel, for Plaintiff and Appellant.
____________________
INTRODUCTION
K.S.
(Mother) appeals from a jurisdictional/dispositional order declaring her son,
S.W., to be a dependent child of the court under subdivisions (b) and (j) of
Welfare and Institutions Code section 300,
(§ 361, subd. (b)), placing him in the custody of his presumed father, S.W.,
Sr. (Father), and terminating jurisdiction.
We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Mother
and Father are not married and did not live together. They had one child, seven-year-old S.W. In September 2011, Mother had a second child,
Ethan K., by another man.
On
the morning of October 23, 2011, Mother awoke
and found Ethan, who had been sleeping in her bed, unresponsive. Mother and a neighbor initiated CPR and
called 911. Paramedics arrived and took
Ethan to the hospital, where he was pronounced dead.
The
deputy coroner reported that the night before, Mother had drunk a significant
amount of tequila. She went to sleep in
her bed with Ethan on her chest. The bed
was lined with soft bedding and pillows.
When mother awoke the following morning, Ethan was face down on the bed,
with Mother’s hand on his back. Law
enforcement officers who responded to the scene observed that Mother smelled of
alcohol and was “clearly intoxicated.â€
Her blood alcohol level was .08, meaning that her blood alcohol level
would have been between .18 and .20 when she went to sleep. Investigators found a grocery bag filled with
empty tequila bottles in the home.
On
October 24, a social worker from the Department of Children and Family Services
(DCFS) attempted to visit Mother, but Mother was not home. The social worker left a grief counseling
packet. The social worker went to S.W.’s
school. The principal stated that S.W.
had good attendance and supportive father and paternal grandmother. S.W., who was not home at the time of his
brother’s death and did not yet know about it, was polite, bright and
happy. He told the social worker that he
had two homes, one with each parent, and he spoke positively about both parents
and felt safe with them. He exhibited no
signs of abuse, did not know about alcohol and was unaware of any changes in
Mother’s behavior after having any kind of drinks.
Mother
contacted the social worker after returning home and agreed to have S.W. stay
with Father until the investigation into Ethan’s death was completed. The social worker discussed the need for a
safety plan, but Mother refused to sign any paperwork.
The
social worker also visited Father’s home.
Neither Father nor the paternal grandmother had ever noticed Mother
having alcohol on her breath or appearing to be intoxicated. The paternal grandmother noted that Mother
had appeared to be tired since Ethan’s birth.
Father’s and the paternal grandmother’s only concerns about Mother’s
mental health had to do with stalking behavior toward Father and possible
domestic violence involving Ethan’s father.
DCFS
filed a petition under subdivisions (b) and (j) of section 300 on November 3,
alleging that S.W. was at risk of serious physical harm or illness due to
Mother’s alcohol abuse, which prevented her from providing appropriate care to
Ethan and thus also posed a risk to S.W.
At
the November 3 detention hearing, S.W. was detained from Mother’s custody and
released to Father. The juvenile court
granted Mother monitored visitation.
In
the December 12 jurisdiction/disposition report, DCFS noted that there was no
prior child welfare history for S.W., but Mother had a child welfare history as
a result of sexual abuse by her stepfather.
DCFS interviewed Father, who had no firsthand knowledge regarding
Ethan’s death or any substance abuse by Mother.
He reported that S.W. had told him about fights between Mother and
Ethan’s father.
The
paternal grandmother reported that she picked S.W. up at a gathering of
Mother’s family October 22, 2011 at about 9:00 p.m. in order to babysit
him. There was a lot of alcohol on the
table. The paternal grandmother had
agreed to serve as a monitor for Mother’s visitation with S.W. She reported that Mother was arriving late,
was possibly under the influence of alcohol, and sometimes brought other people
with her and spent time texting during the visit.
Mother
had enrolled in a program at The New You Center, Inc., which provided parenting
classes, random alcohol testing and individual counseling. Because the center was not approved, DCFS was
assessing its appropriateness.
The
coroner had not yet issued a report as to the cause of Ethan’s death. Ethan’s physician indicated the presumed
cause of death was Sudden Infant Death Syndrome (SIDS).
On
January 20, 2012, DCFS reported that visitation was going well. Mother was continuing to attend counseling
sessions at The New You Center. The
program director reported that Mother did not present addictive behaviors, and
all of her random tests had been negative.
At a hearing on that date, the juvenile court continued the matter to
obtain the coroner’s report and ordered DCFS to address terminating
jurisdiction with a family law order.
On
February 24, DCFS reported that it had received the Coroner Investigator’s
Narrative and Autopsy Report. While the
initial investigation concluded Ethan’s death was a homicide because Mother had
been drinking and co-slept with Ethan, “no evidence of trauma was found at
autopsy.†The coroner stated: “Accidental layover from bedsharing cannot be
proven or ruled-out, nor can other mechanisms of asphyxia. The cause of death is listed as sudden
unexplained infant death. It is
undetermined whether external factors are involved. The manner of death is undetermined.â€
For
the jurisdiction/disposition hearing on March 6, DCFS filed a report
recommending sustaining the petition based on evidence of Mother’s
intoxication, the many alcohol containers found at her house, as well as an
open bottle of Oxycodone. DCFS opined
that due to her intoxication, Mother “utilized gravely negligent judgment†by
placing Ethan in bed with her, with soft bedding on the bed.
DCFS
stated that Father was parenting S.W. appropriately and was not in need of
services. Father hoped that Mother would
comply with her programs and get the help she needed, so that they could resume
joint legal and physical custody of S.W.
DCFS did not believe it was necessary to retain jurisdiction over the
matter, as Mother had enrolled in programs to address the issues which led to
DCFS involvement.
At
the March 6 hearing, Dr. Noelle Reid, Ethan’s pediatrician, testified as to
Ethan’s health, the risks of co-sleeping and SIDS. She noted that co-sleeping increased the risk
of SIDS, and that there could be a genetic predisposition to SIDS. She also stated that if a parent is
inebriated, it is not safe to co-sleep.
Additionally, there should not be extra materials such as pillows and
blankets on the bed.
The
maternal grandmother testified that SIDS ran in both sides of her family. One of Mother’s siblings had died of SIDS.
Dr.
Anthony Shaw, a pediatric
surgeon and expert in child abuse, testified that he had reviewed Ethan’s
medical records, including the coroner’s report. He saw no evidence of smothering or
asphyxiation as a cause of death. He
also testified regarding a genetic predisposition to SIDS.
The
juvenile court noted that “this is a very sad situation and a baby died. We can’t know what might have happened had he
been sleeping in a crib, or [had Mother been] sober as opposed to having been
drinking, [whether she] would have heard something, if [she] might have
awakened earlier, or if [she] had not been with all those pillows and stuff.â€
The
court further noted that the coroner could not determine the cause of death,
whether it was SIDS or something else.
But it found that Mother “clearly had to be under the influence at the
time she went to bed,†and “given the family history of SIDS, and given the bed
and given [Mother’s] drinking,†the allegations of the petition were true. “[Mother] was under the influence while the
child was under Mother’s care and supervision.
And she couldn’t provide adequate care and supervision for this sibling
due to alcohol intoxication.â€
Further,
given that Father was non-offending and S.W. was well cared for, the juvenile
court decided to terminate jurisdiction with a family law order. “I think it adequately protects Mother, and I
think that Mother will make progress.â€
Mother did not need to be in court but “needs to deal with her
drinking.â€
The
juvenile court therefore declared S.W. to be a dependent child of the court
under subdivisions (b) and (j) of section 300 and found a substantial danger to
S.W. without removal from Mother’s custody under section 361, subdivision
(b). It ordered that Father have legal
and physical custody of S.W. with visitation for Mother, and it terminated
jurisdiction.
DISCUSSION
Sufficiency of the Evidence to Support the
Jurisdictional Findings
The
juvenile court’s jurisdictional findings must be supported by a preponderance
of the evidence. (§ 355; Cynthia
D. v. Superior Court (1993) 5 Cal.4th 242, 248.) We review the court’s findings under the
substantial evidence test. (In re
Heather A. (1996) 52 Cal.App.4th 183, 193; In re Matthew S. (1996)
41 Cal.App.4th 1311, 1319.) We will
uphold the findings if they are supported by reasonable, credible evidence of
solid value. (Matthew S., supra,
at p. 1319.) In determining whether
substantial evidence supports the findings, we view the evidence in the light
most favorable to the findings, noting that questions of fact and credibility
are the exclusive province of the juvenile court. (In re Ricardo L. (2003) 109
Cal.App.4th 552, 564; In re Tania S. (1992) 5 Cal.App.4th 728,
733.) We do not reweigh the evidence or
exercise our independent judgment. (In
re Ricardo L., supra, at p. 564; In re Matthew S. (1988) 201
Cal.App.3d 315, 321.)
“A
jurisdictional finding under section 300, subdivision (b) requires: ‘“(1) neglectful
conduct by the parent in one of the specified forms; (2) causation; and
(3) ‘serious physical harm or illness’ to the child, or a ‘substantial
risk’ of such harm or illness.â€
[Citations.] The third element
‘effectively requires a showing that at the time of the jurisdictional hearing
the child is at substantial risk of serious physical harm in the future (e.g.,
evidence showing a substantial risk that past physical harm will
reoccur).’ [Citation.]†(In re
James R. (2009) 176 Cal.App.4th 129, 135.)
While
“evidence of past conduct may be probative of current conditions, the court
must determine ‘whether circumstances at
the time of the hearing subject the minor to the defined risk of
harm.’ [Citations.] Evidence of past conduct, without more, is
insufficient to support a jurisdictional finding under section 300. There must be some reason beyond mere
speculation to believe the alleged conduct will recur. [Citation.]â€
(In re James R.,
Here,
there was no evidence of past harm to S.W. due to alcohol abuse by Mother. The evidence showed only that on October 22,
2011, Mother became intoxicated, and her intoxication may have contributed to
Ethan’s death.
Thereafter,
Mother voluntarily enrolled in a program at The New You Center. As of January 20, 2012, Mother was continuing
to attend counseling sessions at The New You Center. The program director reported that Mother did
not present addictive behaviors, and all of her random tests had been negative.
That
Mother recognized the inappropriateness of her actions and took voluntary steps
to correct them supports a finding that at the time of the hearing, there was
no risk of harm to S.W. (
1373, 1381; see In re A.J. (2011) 197
Cal.App.4th 1095, 1106.) Additionally,
while there was evidence of empty alcohol containers at Mother’s home, there
was no evidence that she was regularly intoxicated while S.W. was home,
rendering her incapable of caring for him.
DCFS
“did not show with specificity†how S.W. was at risk of harm in the
future. (In re James R., supra,
176 Cal.App.4th at p. 137.) The evidence
of Ethan’s death while Mother was intoxicated is insufficient to sustain a
finding under subdivision (b) of section 300 as to S.W. (Id.
at pp. 136-137.)
Similarly,
under subdivision (j) of section 300, DCFS must show both that the child’s
sibling has been abused or neglected and that the child in question is at
substantial risk of abuse or neglect. (
Again, the evidence of Mother’s intoxication and Ethan’s death is
insufficient to support a jurisdictional finding as to S.W. absent evidence
that Mother currently posed a substantial risk of harm to S.W. (In re
Alexis S. (2012) 205 Cal.App.4th 48, 55.)
We
conclude that the jurisdictional order is not supported by substantial evidence
and must be reversed. The dispositional
order and any subsequent orders therefore are moot. (In re
Ricardo L., supra, 109
Cal.App.4th at p. 569.)
DISPOSITION
The
jurisdictional/dispositional order is reversed.
JACKSON,
J.
We concur:
WOODS, Acting P. J.
ZELON, J.
name="_ftn1" title="">[1] All further statutory references are to the Welfare and
Institutions Code.
