In re Blaine B.

Filed 8/25/08 In re Blaine B. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Warren Small, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Tiffany N. North, Deputy County Counsel, for Plaintiff and Respondent.

Karen J. Dodd, under appointment by the Court of Appeal, for Minor.

Denise G. (Mother) appeals from the juvenile courts findings from the jurisdictional/dispositional hearing declaring her son, Blaine B. (the minor), a dependent of the juvenile court pursuant to Welfare and Institutions Code section 360, subdivision (d).^[1] Mothers sole contention on appeal is that there was insufficient evidence to support the jurisdictional finding under section 300, subdivision (b). We reject this contention and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

The minor, then 14 years old, came to the attention of the Riverside County Department of Public Social Services (DPSS) on July 25, 2007, when DPSS received a referral reporting Mother had gotten into an argument with relatives and had told the minor, If I had a gun, I would shoot myself and make you watch. The minor had stated that Mother would often come home from bars drunk, break items, yell, and act irritable. The minor also noted that Mother spent all of their money at the bars and that they were in danger of losing their home. He also stated that he wanted a social worker to come to his home and place him with relatives.

On July 30, 2007, a social worker interviewed the minor at his school. When the social worker arrived, the minor stated, [t]hank [G]od you are here. The minor told the social worker that Mother was behind on her bills so she had sent him to live with relatives in Arizona. After a few weeks, Mother asked him to return. The minor told the social worker that he wished to return to his relatives in Arizona because he felt safer there and did not have to worry. The minor said that on July 27, 2007, Mother hit him on the back of the head, leaving a bump. The minor also reported that about seven months ago Mother threw him against a wall and had left bruises on his arm. He also said that about a year ago, Mother hit his sister in the mouth with a broomstick and that his sister had moved in with relatives in Arizona and was happier there. He further stated that Mother allows the minors older brother to smoke marijuana in the house and that gang members, who were angry with the older brother, had committed a drive-by shooting at their house in the past.

On July 31, 2007, the social worker interviewed Mother. Mother admitted that she had sent the minor to live with relatives in Arizona, but only because her work was slow. She also admitted to drinking three, 24-ounce cans of beer at a time, but denied drinking daily. She further admitted to (1) being arrested for battery and driving under the influence (DUI),^[2](2) telling the minor that if she had a gun she would shoot herself, and (3) that her adult son lived with her on and off. Mother denied ever throwing the minor against a wall. The minor adamantly stated several times that he wanted to go to a foster home. The minor was accordingly taken into protective custody.

On August 2, 2007, a petition was filed on behalf of the minor pursuant to section 300, subdivisions (b) (failure to protect), (c) (serious emotional damage), and (g) (no provision for support). A detention hearing was held the following day. At that hearing, the court found that DPSS had failed to provide notice pursuant to the Indian Child Welfare Act (ICWA) and ordered DPSS to provide notice to the Chippewa tribes.^[3] In addition, reunification services were ordered for Mother.

Mother was again interviewed by the social worker on August 3, 2007. She admitted that her present living conditions were unstable. Mother was willing to voluntarily and temporarily place the minor with a maternal cousin in Seattle. She was unemployed, having vehicle problems, and experiencing financial difficulty. Mother also gave the social worker a phone number for the minors father (Father).^[4] Mother told the social worker that she had notified Father of the detention hearing, but Father did not attend because he had outstanding bench warrants for failure to appear.

The social worker also interviewed a maternal cousin in Seattle, as well as a maternal uncle in Arizona. The maternal cousin reported that she desired to have the minor stay with her until Mothers situation stabilized, but that she wanted some assurance that the minor would not be sent back to Mother until Mother was able to care for him. In the past, Mother would call one to two weeks after placing the minor with the cousin, asking for the minor to return.

The maternal uncle reported that the minor had told him he was unhappy living with Mother. On July 4, 2007, Mother asked the cousin and his wife if the minor could stay with them because Mother was unable to financially support the minor. After about two weeks, Mother called the cousin and threw a big fit. Mother wanted the minor to return home or she would call the police. The uncle expressed a willingness to have the minor placed with him.

On July 20, 2007, the minor ran away from his foster placement and returned to Mothers home. Mother called the social worker and informed her that the minor was at her house. Later that day, the minor was placed with a maternal uncle in Palmdale, California.

In a jurisdiction/disposition report dated September 20, 2007, the social worker reported that when she had subsequently interviewed the minor, he had changed his story regarding several of the allegations he had made against Mother, claiming that he was merely angry with Mother and had made the whole thing up. The minor had initially stated that Mother had sent him to Arizona to live with some family due to financial problems, but later claimed that he wanted to stay in Arizona and made up the whole story so that he could stay in Arizona. He further stated that he desired to live in Arizona because there had been a lot of gang activity in his neighborhood and he did not feel safe. The minor confirmed that Mother drank a lot and that she was about to lose her home. The minor recanted his earlier statement about Mother throwing him against a wall. He explained that he had been walking backwards, and had tripped and fell into the wall. He also denied the incident about his brother smoking marijuana. However, the minor did confirm the incident wherein Mother was angry with him and had hit him on the back of the head, leaving a small bump. He also confirmed that Mother had made the comment about killing herself in front of him. The minor also stated, I love my mom but I dont want to live with her anymore. I have lived with her for a long time and Im tired of living there.

On September 20, 2007, the juvenile court continued the combined jurisdiction/disposition hearing and ordered DPSS to obtain an Indian expert declaration. Also, reunification services were ordered for Mother.

According to social worker reports, Mother had been regularly visiting the minor and the visits had been going well. Mother had taken the minor out to eat, they went to a soccer game, and she had called him everyday. Mother was also reported to be complying with her case plan and had tested negative for drugs.

The declaration of Indian expert witness Phillip E. Powers was submitted to the juvenile court on December 26, 2007. After speaking with the maternal uncle who had been caring for the minor, the social worker, and Mother, and reviewing the case files, the expert opined that the minor should continue to be removed from the parents and that he should be declared a dependent of the court. The expert wrote, This is a case which falls under the [ICWA] and it is my opinion that a return of the child to [the] custody of either parent would cause danger of serious physical and emotional harm to this child. . . . The child has made allegations of physical abuse and alcohol abuse against the mother. While he now recants some of these allegations, it remains disturbing that there is at least some verifiable substance to the alcohol abuse issues. It is also disturbing that the mother delayed a threat to kill herself to the child and the very fact that the child would go so far as to make up the serious physical abuse allegations.

On or about January 3, 2008, the Sault Ste. Marie Tribe of Chippewa Indians filed a petition to intervene, which was granted.

On January 10, 2008, a contested jurisdictional hearing was held. On that same day, DPSS filed an amended petition pursuant to section 300, subdivisions (b) and (g). The petition alleged that Mother had a history of abusing alcohol; that Fathers whereabouts were unknown; and that such conditions placed the minor at risk of suffering serious physical harm. At that hearing, the parties agreed to accept the Indian expert declaration. DPSS recommended that the minor be placed with Mother with family maintenance services. Minors trial counsel asked that the petition be found true and informed the court that visits had been going well. She advised the court that the minor believed Mother had changed and the minor felt very comfortable going home and living with Mother at this time.

Mother denied the allegations in the amended petition and asked the court to dismiss the petition. However, Mother admitted getting the DUI in May 2006 and stated, Ive done all the required stuff that I was, basically, supposed to do. I dont drink. She further stated, All this happened as a result of being in a financial situation. When I asked my family for help, you know what, I didnt get the help. They didnt help me the first time. All I was trying to do was do all of this right for my child, and because he didnt get his way he said a lot of stuff. Mother admitted to participating in an alcohol abuse program after getting the DUI, but confirmed that she had stopped participating in the program and attending the meetings. Mothers counsel argued that despite what the minor had stated, there was no evidence at this time to show that [Mother] is abusing alcohol or was abusing alcohol at the time of the detention.

During the proceedings, Mothers trial counsel asked for a moment, and the court took a brief recess. Mother had exited the courtroom and refused to return after the recess. The court asked minors counsel if she believed the minor would be safe without providing family maintenance services. Minors counsel stated that Mother needed to follow through on services to insure the minors safety; the court observed the minor shaking his head in agreement with his counsel. After reading the social workers reports and listening to all arguments and testimony, the court found the allegations in the petition true. The minor was declared a dependent of the court. The court also ordered the minor placed in the care of Mother and ordered that family maintenance services be provided. The court also ordered Mother to participate in counseling and/or educational programs. This appeal followed.

II

DISCUSSION

Mother contends there was insufficient evidence to support the jurisdictional findings with regard to section 300, subdivision (b). Specifically, she claims there was no evidence that the minor suffered serious physical harm or evidence that he was at risk of suffering serious physical harm at the time of the jurisdictional hearing. We disagree.

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidencethat is, evidence which is reasonable, credible and of solid valueto support the conclusion of the trier of fact. [Citations.] In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. [Citations.] The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. [Citation.] (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) In short, We have no power to judge the effect or value of the evidence, to weigh the evidence [or] to consider the credibility of witnesses . . . . [Citation.] (In re Mark L. (2001) 94 Cal.App.4th 573, 581.)

As pertains here, section 300, subdivision (b), authorizes dependency jurisdiction 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 childs parents] failure or inability . . . to adequately supervise or protect the child . . . by the inability of the parent . . . to provide regular care for the child due to the parents . . . substance abuse.^[5] The facts necessary to show neglect within the meaning of subdivision (b) are: (1) a parents neglectful conduct; (2) causation; and (3) serious physical harm or illness to the child or a substantial risk of such harm or illness. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) Subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness. (Id. at p. 823.)

To determine a substantial risk of serious physical harm, evidence of a parents past conduct may be probative of current conditions. However, the pertinent inquiry under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) This inquiry is pertinent because a child shall continue to be a dependent child . . . only so long as is necessary to protect the child from risk of suffering serious physical harm or illness. ( 300, subd. (b).)

The evidence here is that Mother had serious and ongoing problems of alcohol abuse. While Mother claimed at the jurisdictional hearing that she no longer drank alcohol and was living the 12 steps of Alcoholics Anonymous everyday, the record shows Mothers behavior placed the minor at risk. During an interview with the social worker, Mother admitted drinking but stated that she did not drink everyday. Mother also admitted that she had a conviction for DUI. Furthermore, the minor reported that Mother would go to bars, would come home and yell at him, and would get into fights. The minor also stated that Mother hit him on the back of the head and left a small bump. He also stated that Mother had made a statement about shooting herself if she had a gun. He later recanted some of these statements.^[6] However, Mothers relatives confirmed that she drank alcohol in excess. The fear reported by the minor due to Mothers substance abuse, her speaking of death, and her willingness to drive while under the influence sufficiently supports the allegations that Mothers substance abuse placed the minor at risk of serious physical harm.

Mother argues there is no evidence to show that her alcohol abuse ever caused the minor to suffer serious physical harm. However, as noted above, section 300, subdivision (b), requires a showing that [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 failure or inability of [the childs] parent . . . to adequately supervise or protect the child. (Italics added.) Even though the minor recanted some of the physical abuse allegations, there was still evidence that Mother had hit him on at least one occasion. There was also evidence that she had hit his sister in the mouth with a broomstick. Moreover, there was ample evidence in the record to show that Mother had anger management issues. She had threatened the maternal uncle and his wife in Arizona by telling them she would call the cops and cause bodily harm. In addition, she had beat in [the minors stepfathers] car windows and consequently had gone to jail. The record also contains evidence of Mothers criminal history for vandalism, battery, and disturbing the peace. Given such evidence, coupled with Mothers history of abusing alcohol, it was reasonable for the court to infer that there is a substantial risk that the minor would suffer serious physical harm or illness due to Mothers substance abuse.

Further, the record shows that the minor dealt with Mothers drinking and anger by leaving the house and walking around until midnight or 1:00 a.m. It is also undisputed that the minor and Mother live in a neighborhood with gang activity. Even though the minor is not a baby or toddler, but a 15-year-old boy (as Mother repeatedly points out), the minor leaving the home due to Mothers substance abuse, in the middle of the night, in an unsafe neighborhood, places him at risk of suffering serious physical harm.

Additionally, at the time of the jurisdictional hearing, the minor agreed he would be safe in Mothers home as long as DPSS remained involved with his family and continued to monitor the situation by providing services. As the social worker indicated in his January 10, 2008, report, Mother had been verbal and noncompliant with the social worker, albeit she was participating in her case plan. Mother had stated that all of this was unnecessary and blamed the minor for making it all up; and in fact, following a brief recess, Mother failed to return to the courtroom.

The case in which Mother places primary reliance, In re David M. (2005) 134 Cal.App.4th 822 (David M.), is distinguishable. In that case, there was evidence that the mother was diagnosed nearly four years earlier as being delusional and impaired by a history of marijuana use. She had tested positive for marijuana metabolites at the recent birth of one of her children and the father had an anxiety disorder. In addition, the mother had allowed one of her friends, who smoked marijuana, to babysit on a few occasions, although the friend was not under the influence of marijuana when she watched the children. The social worker acknowledged that she had no current information regarding the mothers mental condition and that there was no evidence that the mother was unable to care for or protect her children. (Id. at pp. 825-827, 832.)

The appellate court found two overarching problems with the juvenile courts jurisdictional findings. (David M., supra, 134 Cal.App.4th at p. 829.) The first problem was that the parents mental health and substance abuse issues were never connected to any harm or risk of harm to the children. (Ibid.) The second problem was that the social services agency failed to conduct a current investigation, instead relying exclusively on information from dependency proceedings occurring several years earlier concerning another child. (Id. at p. 831.) Acknowledging that past abuse or neglect can certainly be an indicator of future risk of harm, the appellate court concluded that the record of past neglect in this case [the childrens sibling had been made a dependent several years earlier because the mother used marijuana throughout her pregnancy and was incarcerated when the child was born] is not enough to declare a child a dependent of the juvenile court without something more current. (Ibid.)

The circumstances in the present matter are readily distinguishable. This case did not involve a single incident of neglect or a single lapse in parental judgment; where there was no reason to believe it would ever reoccur. This proceeding began as a result of Mothers recent alcohol abuse, which placed the minor at risk of suffering serious physical harm. Although Mother was participating in her substance abuse program at the time of the jurisdictional hearing, and the minor believed his Mother had changed, the minor still requested DPSS involvement to insure his safety. The neglect of the minor is recent and until Mother has demonstrated appreciation for the risk involved in exposing a teenage child to alcohol abuse, the minor remains at serious risk of harm.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P. J.

We concur:

KING

J.

MILLER

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] A subsequent search of Mothers criminal history showed that she had been convicted of public intoxication in August 2002. Also, in May 2006, she had been convicted of DUI, vandalism greater than $400, DUI with .08 percent or higher blood alcohol level, and harassment.

^[3] Mother is a registered member of the Chippewa tribe.

^[4] Father is not a party to this appeal.

^[5] However, we note the minor is a dependent if the actions of either parent bring [him] within one of the statutory definitions of a dependent. [Citations.] (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.)

^[6] Although the minor gave reasons for making some of the allegations, the court could infer that he had recanted his statements out of love for Mother. The record clearly shows that the minor loves Mother (and that Mother loves him).