In re Jessica H.
Filed 9/28/10 In re Jessica H. CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re JESSICA H., a Person
Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
ANGELA C.,
Defendant and Appellant.
D056124
(Super. Ct.
No. J517519)
APPEAL from
orders of the Superior Court
of San Diego
County, Garry G. Haehnle, Judge. Affirmed.
Angela C.
appeals juvenile court orders declaring her daughter, Jessica H., a dependent
child of the court, removing custody from her and placing Jessica with
Jessica's father, Michael H. Angela
contends the court erred by finding Jessica is a child described by Welfare and
Institutions Code[1]
section 300, subdivision (b), and that she was at substantial risk of serious
harm in her custody. We affirm the
orders.
FACTUAL AND
PROCEDURAL BACKGROUND
On June 19,
2009, the San Diego County Health and
Human Services Agency (the Agency) petitioned on behalf of seven-year-old
Jessica under section 300, subdivision (b), alleging she was at substantial
risk because in December 2008 she was found in a home where underage people
were consuming alcohol and there was a strong smell of marijuana, and Angela
admitted driving with Jessica while under the influence of marijuana, which she
smokes more than four times each day.
The social
worker reported Angela has an extensive history with Child Protective Services
(CPS). In December 2008 police had
responded to a call about a party in Angela's apartment, where they found
underage people drinking beer and the odor of marijuana in the home. Later, in March 2009, Jessica said that
Angela had become angry the night before and could not open the door to their
home, so she punched out a window, injuring herself and scaring Jessica.
Angela told
the social worker she smokes medical marijuana, but needs to renew her medical
marijuana card. Angela showed the social
worker documentation stating the marijuana is for depression and anorexia. She admitted she uses the drug more than four
times each day and that she drives with Jessica in the car while under the
influence of marijuana. She insisted her
marijuana use does not impair her driving abilities and refused to participate
in voluntary services.
Michael
said he was concerned about Angela's care of Jessica. After the March 2009 incident, Jessica lived
with him for a time. He said he would
file to request custody, but did not do so, and Jessica returned to live with
Angela. Michael indicated Angela had
moved to a better neighborhood and he wanted Jessica to live with her during
the week and visit him on weekends.
The court
ordered Jessica detained with Michael.
At the jurisdictional hearing, the social
worker testified she had determined Jessica was at risk in Angela's custody
based on Angela's history of referrals to CPS, her criminal and mental health
history, and the fact she believed her driving with Jessica while under the
influence of marijuana did not endanger Jessica. The social worker said, although Michael has
a criminal history, he has never put Jessica at risk in his custody.[2]
Angela
testified she smokes small amounts of marijuana several times each day, but
never smokes it around Jessica. She said
she has had a marijuana card for 11 or 12 years. She did not believe her marijuana use
impaired her driving. Regarding the
December 2008 incident, she said she was away from her apartment for a few
minutes that night, did not know people were there and denied there was
underage drinking. As for the March 2009
incident, she said she punched out the window because she was locked out of her
home and there were people inside whom she had not invited to be there.
The court
found the allegations of the petition to be true.
At the
disposition hearing, Angela submitted to the Agency's recommendations, stating
she wanted visitation and to be able to talk with Jessica on a regular
basis. The court ordered Jessica placed
with Michael, that Angela have supervised visits and that Angela and Michael
comply with their case plans.
DISCUSSION
Angela
contends the jurisdictional findings were not supported by substantial
evidence. She argues Jessica was not at
risk at the time of the hearing and no evidence was presented to show she ever
drove with Jessica while impaired by her use of marijuana.
A.
A reviewing
court must uphold a juvenile court's findings and orders if they are supported
by substantial evidence. (
1031, 1036-1037.) "[W]e must
indulge in all reasonable inferences to support the findings of the juvenile
court [citation], and we must also '. . . view the record in the light most
favorable to the orders of the juvenile court.' " (In re
Luwanna S. (1973) 31 Cal.App.3d 112, 114.)
The appellant bears the burden to show the evidence is insufficient to
support the court's findings. (
412, 420.)
A juvenile
court is not required to wait until a child is actually hurt before it assumes
jurisdiction. (In re Diamond H. (2000) 82 Cal.App. 4th 1127, 1136, disapproved on
other grounds in Renee J. v. Superior
Court (2001) 26 Cal.4th 735, 749, fn. 6.)
The focus of the statute is to avert harm to the child. (In re
Jamie M. (1982) 134 Cal.App.3d 530, 536.) In order for the court to sustain the
petition, the child must be at risk of harm at the time of the jurisdictional
hearing. (In re Alexander K. (1993) 14 Cal.App.4th 549, 560.)
B.
Substantial
evidence supports the court's finding under section 300, subdivision (b), that
Jessica was at substantial risk in Angela's custody.
Angela
refused to acknowledge her driving with Jessica while under the influence of
marijuana placed Jessica at risk. Her
argument there was no evidence she was impaired when driving is without
merit. Her medical marijuana documents
state the drug is not to be used while engaged in behavior that endangers
others, such as driving a vehicle.
Moreover, it is illegal to drive a motor vehicle while under the
influence of any alcoholic beverage or drug.
(Veh. Code, § 23152, subd. (a).)
Angela's statement she never smoked marijuana in Jessica's presence is
not supported. She admitted she smoked
the drug several times each day while she and Jessica lived together in a small
apartment. Jessica said Angela was
asleep "maybe . . . every day after school,"
showing the effect the marijuana had on her.
The risk to Jessica was also shown by Angela's refusal to accept the
voluntary services the social worker offered.
Angela's
conduct during several incidents showed Jessica was at significant risk in her
custody. In December 2008 police found
Jessica in their home with 11 people between the ages of 18 and 20, empty beer
cans and an odor of marijuana smoke.
Angela refused to accept blame for this incident, saying she was not in
the apartment and did not know there were underage drinkers there.
Angela has
a history of referrals to CPS. From 2002
until April 2009 the Agency investigated 11 child protection referrals
regarding Jessica. The referrals
included a report of domestic violence between Angela and the maternal
grandmother, reports that Angela had a problem with alcohol and marijuana use,
and reports that Angela brought underage males into the home, furnished alcohol
to them and had sexual relations with them.
There was a report that police at one time found marijuana and drug
paraphernalia in the van where Angela and Jessica were living, and when the
officer took the marijuana, Angela ran into the street, paying no attention to
Jessica.
The report
of the March 2009 incident stated Angela had smashed a window in their
home. When police arrived, Angela
screamed and was belligerent. Jessica
said there was blood and glass all over Angela and her, and she was afraid and
worried that she might be removed from Angela's care. A referral in April 2009 reported that
Jessica was anxious and worried. Angela
and Jessica had frequently moved and Jessica had often changed schools. Jessica was repeatedly late or absent, walked
to school unsupervised, and Angela sometimes did not appear to take her
home. Jessica looked disheveled, had
poor hygiene and was struggling with her school work.
Angela's
argument that Jessica was no longer at risk because she had moved from an
unsafe neighborhood and removed herself from former friends is not
supported. Angela's risky behavior had
continued for several years as she moved from place to place and she refused to
acknowledge that her conduct posed a risk to Jessica. The jurisdictional finding is supported by
substantial evidence.[3]
DISPOSITION
The orders
are affirmed.
NARES, Acting P. J.
WE CONCUR:
HALLER,
J.
IRION,
J.
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[1]
Statutory references are to the
Welfare and Institutions Code unless otherwise specified.
[2]
Michael's criminal history
includes convictions for possessing marijuana with an intent to sell,
possession of a controlled substance, driving with a suspended license and a
nonspecified potential felony strike.
