K.D. v. Superior Court

Filed 1/9/09 K.D. v. Superior Court CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

On September 23, 2008, the Mendocino County Superior Court, Juvenile Division, entered an order in this proceeding that denied further reunification services for K.D. (Mother) and set a hearing under Welfare and Institutions Code[1] section 366.26 to select a permanent plan for C.S. and R.S. (the minors). Mother challenges this order by petition for extraordinary writ, claiming the juvenile court erred in making certain findings. As discussed below, we conclude there is substantial evidence to support the contested findings, and deny Mothers petition on the merits.[2]

I. Background

The Mendocino County Department of Social Services (Department) initiated this proceeding in August 2005, and at that time removed the minorsboth two years of agefrom Mothers physical custody. The following month, the juvenile court sustained dependency jurisdiction over the minors, finding true the ultimate fact that Mother ha[d] a polysubstance abuse problem involving alcohol and prescription medications, which impair[ed] her ability to safely and adequately supervise and care for her children. (See 300, subd. (b).) More specifically, the court found that on August 7, 2005, officers of the Willits Police Department had arrested Mother on a charge of child endangerment after finding her intoxicated and unaware [that the minors had been] absen[t] from her home. Mother had admitted to one officer she had been mixing [prescription muscle relaxant and pain] medications with large amounts of alcohol. According to a police report attached to the Departments jurisdictional report, the minors had left Mothers apartment unsupervised and had gone to an upstairs neighbors apartment, and that some 45 minutes had lapsed before Mother emerged from her apartment to look for her daughters. The officer observed the minors were very dirty, and one was naked while the other was wearing only an oversized shirt. The upstairs neighbor reported that a similar incident had occurred some three days earlier.

On October 5, 2005, at the conclusion of its dispositional hearing, the court continued the minors in out-of-home care, ordered reunification services for Mother, and adopted the Departments proposed reunification plan.[3] Mothers plan called for her to stay free from alcohol and illegal drug dependency, comply with random drug testing, and obtain substance abuse treatment by successful completion of the countys Alcohol and Other Drugs Programs. The plan also required that Mother complete sessions to deal with anger and denial relating to the Departments intervention, to enroll in the Departments Family Empowerment Group (FEG) to address goals defined in an Empowerment Plan, and to complete a specified series of parenting classes.

At the six-month status review hearing, held in April 2006, the juvenile court continued the minors in out-of-home care, but directed that reunification services for Mother continue. On August 31, 2006, at the conclusion of the 12-month permanency hearing, the court again continued both the minors out-of-home placement and services for Mother. At the 18-month permanency review hearing, held in January 2007, the court found that Mother had not made significant progress in alleviating the problems that had led to the minors removal from her care. But the court also found that the Department had failed to provide reasonable services for Mother,[4] and that there was a substantial probability that the minors could be safely returned to Mothers care within six months. Based on these [e]xceptional circumstances, the court directed a continuance of Mothers reunification services beyond the 18-month statutory limit. (See, e.g., In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1067.)

In a Department report signed in late July 2007, the assigned case worker stated that the circumstances that originally brought this family to the attention of the Department have been partially addressed, and recommended that the juvenile court return the minors to Mothers care pursuant to a family maintenance plan. The family maintenance plan called for Mother to maintain a lifestyle free from the effects of alcohol and or substance abuse. It further required that she continue to submit to random urinalysis, complete a psychological evaluation and follow any treatment recommendations, and to continue certain other activities, such as participation in the Departments FEG. The plans projected completion date was January 29, 2008. The juvenile court adopted the Department recommendations and the proposed family maintenance plan at the conclusion of the continued permanency review hearing held on September 5, 2007.

In a report prepared in mid-January 2008 for the family maintenance review hearing, the Department case worker stated that Mothers progress had been limited, primarily because Mother had been compelled to give her attention to two unrelated criminal proceedings. One involved an outstanding warrant issued in Butte County in connection with a DUI incident that had occurred five years earlier. The other resulted in Mothers felony conviction, in November 2007, for insurance fraud committed two years previously in Mendocino County. Consequently the case worker recommended that the juvenile court continue its dependency jurisdiction for an additional six months and direct Mother to continue compliance with the requirements of her family maintenance plan during that time. On January 15, 2008, the court adopted the Departments recommendations and directed the continuance of Mothers family maintenance services.

On May 6, 2008, the Department once again removed the minorsnow five years of agefrom Mothers physical custody. The following day it filed a supplemental petition under section 387. The petition set forth two allegations, designated S-1 and S-2,[5] as the basis for its ultimate allegation that the previous disposition had been ineffective for the protection of the minors. (See 387, subd. (b).) The S-1 allegation stated that Mother had a polysubstance abuse problem, which included the use of prescription medication in conjunction with the abuse of alcohol, which significantly impaire[d] her ability to adequately supervise or provide for the care of [the minors]. The more specific underlying allegations of S-1 described an unannounced home visit by social workers on May 6, the fact that Mother had been unable to open the door for more than thirty minutes despite continued knocking and calling out by the social workers. Mother opened the door only after two Willits police officers arrived and called out for some 10 minutes their demand that she open the door. During the period before Mother opened the door, the social workers had heard through the closed door the minors calling out to Mother, but the minors, too, had been unable to . . . rouse[] her. Mother admitted to the officers she had consumed alcohol on the preceding Sunday. A strong odor of alcohol emanated from [Mothers] person and the officers determined Mother was medicated and under the influence of alcohol to the point that she was disoriented and unresponsive to questioning and following direction. The S-2 allegation stated further that Mother had on more than one occasion . . . failed to provide adequate supervision of the minors. The more specific underlying allegations of S-2 restated the events of May 6, and stated additionally that a Department worker had telephoned Mother on April 30, and that one of the minors had answered and told the worker Mother  was sleeping and [the minors] could not wake her up. 

On July 11, 2008, after a contested jurisdictional hearing on the supplemental petition, the juvenile court found the allegations of S-1 and S-2 to be true and set the matter for disposition. On September 23, 2008, the court entered its dispositional order, finding among other things that there was substantial danger to the minors if they were returned immediately to Mothers custody. (See 361, subd. (c)(1).) The court then denied further services and set the matter for a hearing under section 366.26, as required by rule 5.565(f). Mothers petition followed. ( 366.26, subd. (l).)

II. Discussion

A. The Jurisdictional Findings

At the jurisdictional hearing on a supplemental petition under section 387, the juvenile court must make findings, by a preponderance of the evidence, whether the petitions factual allegations are true, and, if so, whether the previous disposition has been ineffective. (Rule 5.565(e)(1); see rule 5.684(f).) As we have noted above, the court in this instance determined the petitions allegations to be true and set the matter for disposition, by necessary implication finding also that the previous disposition had been ineffective.

Mother contends that the evidence submitted at the jurisdictional hearing showed the minors were clean, well-fed, and healthy at the time of their removal on May 6, 2008, and that a urine analysis for drugs performed on that date was negative as to Mothers use of the prescribed medications she had previously abused. She argues further that the Department failed to secure a urinalysis or other test within a reasonable time after the minors removal, in order to prove she had abused alcohol around that time. Instead, the Department relied on testimony by the social workers at the scene, to the effect that Mother was disoriented and smelled of alcohol. In Mothers view such testimony constitutes a paucity of evidence that was contradicted by other testimony and was too speculative. She urges, in effect, that the evidence was not sufficient to sustain the jurisdictional allegations that she continued to suffer from a polysubstance abuse problem that significantly impaired her ability to care for the minors.

We observe that much of Mothers argument on this point consists of a lengthy discussion of the evidence favorable to her position, including testimony by a hospital nurse to the effect that Mother did not noticeably smell of alcohol when brought to the hospital on May 6, 2008, and other evidence supporting Mothers assertion that she had merely been suffering from a migraine headache. She points as well to certain purported inconsistencies in the testimony of the social workers who encountered Mother on May 6. Mother suggests that such contradictions and inconsistencies effectively precluded any reasonable reliance on the credibility of the social workers who testified that Mother appeared to be disoriented and smelled of alcohol on May 6, especially since the social workers unreasonably failed to secure a test proving that she had used alcohol on or shortly before that date.

The goal of a supplemental petition under section 387 is to protect the minor from some perceived danger or actual harm. The jurisdictional fact to be determined by the juvenile court is whether the previous dispositionin this case the placement of the minors with Mother pursuant to a family maintenance planhas become ineffective for the protection of the minor. (In re Joel H. (1993) 19 Cal.App.4th 1185, 12001201; see also 387, subd. (b); rule 5.565(e)(1).) When this court is called upon to review that jurisdictional finding, the issue before us is whether it is supported by substantial evidence. (In re Joel H., at p. 1200.) We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or evaluate the weight of the evidence, but draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile courts order, and, if the finding is supported by substantial evidence, affirm the order even though other evidence supports a contrary conclusion. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)

The assigned case worker testified that another Department worker attempted to contact Mother by telephone on April 30, 2008, and was concerned because he was unable to speak with Mother. One of the minors answered, and they indicated they were having problems rousing [Mother]. The two workers visited Mother later that day, and Mother reported having a migraine headache for the past four days. The assigned case worker advised her to see a physician about getting a . . . prescription that might work, and also asked Mother to provide a urine sample later that day, which Mother failed to do.

The assigned case worker made another unannounced visit to Mothers residence on May 6, 2008. She testified that, for about 30 minutes, she knocked on the door and called out for Mother to answer, received no response, and then contacted the police. When two officers arrived and were apprised of the problem, they continued to knock and pound and call out for at least 15 minutes before Mother finally answered and opened the door. Mother stood unsteadily, that is, she had her feet farther apart than normal. She did not follow the direction given by one of the officers, that she sit down outside the door and stay seated. Mother also appeared to be disoriented, in that she was unable to tell the officer what day it was, or relate what medications she had taken that day. Although Mother stated she was suffering from a migraine headache, the worker believed [Mother] to be under the influence of alcohol because [the worker] could smell it. She testified that, given all the circumstances, she determined Mother was unable to care for the minors at that time.

A second social worker who was present during the visit on May 6, 2008, testified that when Mother opened the door that day she was staggering. She stated Mother also had a gray complexion, appeared to be disoriented, and had a strong smell of alcohol about her.

A police report regarding the visit to Mothers residence on May 6, 2008, submitted with the Departments jurisdictional report, indicated that Mother had admitted to one of the officers that she had been consuming alcohol earlier. The assigned case workers testimony confirmed Mother had made such an admission. The police report further indicated that one officer had found prescription medicine including hydrocodone and migrane [sic] medication during a brief search of Mothers residence.

Mother was escorted to a local hospital the same day of the visit, and there agreed to provide a urine sample for testing. When the assigned case worker received the results she noted Mother had tested negative for drugs but that the test had no results regarding alcohol. Other evidence indicated that the hospital used only blood samples to test for alcohol. The case worker telephoned the hospital to ask for a test for alcohol, but was informed the urine sample had been discarded. The case worker stated that she obtained another urine sample the next time she contacted Mother, on May 8, and this sample tested negative for alcohol.

A third case worker, who drove Mother home from the hospital on May 6, 2008, testified that she smelled alcohol both when she entered the hospital room to rouse Mother, and during the drive back to Mothers residence. She also stated that Mother needed assistance to walk to the vehicle.

As we have noted, we do not second-guess the juvenile courts credibility calls. (In re MerrickV.(2004) 122 Cal.App.4th 235, 254.) We have reviewed the record in this instance and are not persuaded that the inconsistencies in the case workers statements, cited by Mother, rendered the foregoing testimony inherently incredible.[6] Nor are we persuaded that the contradictory testimony given by one of the hospitals nurses had a similar effect. The police report, prepared by one of the two disinterested officers who confronted Mother on May 6, 2008, tends to support the testimony given by the case workers.

Similarly, we are not convinced that the foregoing testimony was too speculative in light of the Departments failure to secure a timely urine test for alcohol on May 6, 2008. Lay opinion testimony is competent to determine alcohol intoxication when it is based, as in this case, on the perceptions of the witness. (See, e.g., In re Joseph G. (1970) 7 Cal.App.3d 695, 703.) While it may have been preferable for the Department to have obtained test results concerning Mothers use of alcohol on or around May 6, nothing in the record indicates any fault or misconduct on the Departments part in failing to secure such results.

In our view the foregoing evidence provided substantial support for the allegations of S-1 and S-2, summarized above. Further, we note the similarity of the events of April and May 2008, to those which led to the filing of the original section 300 petition in August 2005. While Mothers conduct in 2008 may not have been as egregious as her conduct in 2005, the juvenile court may reasonably have inferred that, given the recurrence of events similar to those that led to its initial jurisdiction over the minors, there was a perceived danger to the protection of the minors, sufficient to set a dispositional hearing on the supplemental petition. Accordingly we conclude the foregoing evidence provided substantial support for the implied jurisdictional finding that the minors previous disposition had not been effective for their protection.

B. The Dispositional Findings

At the conclusion of the dispositional hearing on September 23, 2008, the juvenile court found, by clear and convincing evidence, that returning the minors to Mothers physical custody posed a substantial danger to their physical health, safety, protection, or physical or emotional well-being, and that there was no reasonable means to protect them aside from their removal from Mothers physical custody. Mother contends there was insufficient evidence to support these findings. Again, her argument includes a lengthy discussion of the evidence favorable to her.

Such favorable testimony included that given by a psychologist who had evaluated Mother prior to the dispositional hearing, a substance abuse counselor who had begun treating Mother in June 2008, and the Department case worker assigned to the minors case in early February 2008. Both the psychologist and the assigned case worker agreed that the minors could be safely returned to Mothers care immediately. Mothers substance abuse counselor testified that, so long as Mother continued her current participation in Alcoholics Anonymous meetings and engaged in relapse prevention classes, he did not think she was presently at risk of relapse.

On the other hand, the psychologist also observed that Mother continued to show signs of denial concerning her substance abuse problem, and during his interviews with her she had been unable to express insight into this problem and its effect on her ability to care for the minors. The supervising case worker, who had been familiar with the case since its inception in August 2005, also testified that she continued to have concerns about Mothers ability to maintain the period of sobriety she had begun following the minors removal in May 2008. According to the supervisor, given Mothers overall history of relapse, this four-month timeframe was not substantive enough to demonstrate Mothers ability to maintain her sobriety, and for this reason it was her assessment the minors would not be safe if they were returned immediately to Mothers custody.

The juvenile court commented, immediately before making its substantial danger finding, that it was still satisfied theres [a] risk to the children based on its earlier jurisdictional findings. As we have described above, there was substantial evidence to support those findings, made under the preponderance of the evidence standard of proof. That evidence indicated that Mother had had an incidence of relapse into alcohol abuse, and that on at least two occasions in April and May 2008, she had been incapable of caring for the minors under circumstances similar to those that had precipitated the original petition in August 2005. The court additionally expressed concern over Mothers continuing denial of her substance abuse problem, and regarded Mothers current period of sobriety as only a snapshot when measured against her history of abuse and relapse. Thus it is clear the court also relied on the evidence unfavorable to Mother, described above, which was given by a psychologist concerning Mothers continuing denial and by the supervising case worker concerning the danger of returning the minors to Mothers care after a relatively brief period of sobriety.

The finding required for the removal of a minor pursuant to a supplemental petition is the same as that required for removal under an original petition. The juvenile court must find by clear and convincing evidence that the minor is at risk of substantial danger to his or her physical health, safety, protection, or physical or emotional well-being if the minor is left in the parents custody. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1077; see 361, subd. (c)(1).) Our role, in turn, is to determine whether that finding is supported by substantial evidence. (Kimberly R., at p. 1078.) This standard of review applies as usual, despite the clear and convincing level of proof required below. (See Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880881.) Again, we emphasize that under this standard of review we do not reweigh the evidence and accept the juvenile courts credibility determinations. We view the record most favorably to the juvenile courts ruling and draw all reasonable inferences in its favor. If the courts finding is supported by substantial evidence, we affirm the ruling, even though other evidence might have supported a contrary conclusion. (In re Christopher L., supra, 143 Cal.App.4th at p. 1333.)

The juvenile court was familiar with the overall record in this proceeding, begun over three years ago. It was in the best position, as trier of fact, to evaluate the witnesses and other evidence presented at the dispositional hearing. As we have noted, it indicated clearly the basis for its substantial danger finding, made under the clear and convincing evidence standard of proof. We conclude that the evidence on which it relied provided substantial support for the challenged finding.

III. Disposition

The request for stay is denied and the petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI,  14; Kowisv. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd.v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately.

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Flinn, J.*

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated. References to rules are to the California Rules of Court.

[2] Section 366.26, subdivision (l)(1)(A) bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. ( 366.26, subd. (l)(4)(B).)

[3] Two older half-siblings, S.L. and K.L., were also involved in the earlier stages of these proceedings. In November 2005, the juvenile court granted sole legal and physical custody of these older half-siblings to their father and terminated its jurisdiction as to them.

[4] It appears a Department employee was under investigation regarding allegations that she had altered service log entries relating to the minors case.

[5] The petition also set out a third allegation, S-3, relating to Mothers noncompliance with certain aspects of her family maintenance plan. Although the juvenile court found these to be true, it concluded the allegations did not establish the necessary jurisdictional factthat the previous disposition had been ineffective for the protection of the minors.

[6] These inconsistencies concerned the reason why the hospital did not test Mothers urine sample for alcohol, and whether Mother smelled of alcohol when case workers went to her home on April 30, 2008.

* Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.