In re J.B.
Filed 3/26/13 In re J.B. CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
----
In re J. B., a Person
Coming Under the Juvenile Court Law.
SACRAMENTO
COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
D. B.,
Defendant and Appellant.
C071191
(Super. Ct. No.
JD231069)
and dispositional orders which removed the minor J. B. from his custody and
granted him reunification services. ( ADDIN BA xc <@st> xl 31 s
BSMBLJ000001 xpl 1 l "Welf. & Inst. Code, §§ 355, 358" Welf. & Inst. Code,
§§ 355, 358.) Father
contends no substantial evidence supported the court’s findings under ADDIN
BA xc <@osdv> xl 28 s BSMBLJ000014 l "section 300, subdivision
(b)" section 300, subdivision (b), that father’s
drug habit put the minor at substantial risk of serious physical harm, and that
removal from his custody was required.
We affirm.
Mother’s appeal was dismissed on September
27, 2012, pursuant
to ADDIN BA xc <@cs> xl 39 s
BSMBLJ000002 xhfl Rep l "In re
Phoenix H.,
Phoenix H. (2009) 47 Cal.4th 835.
FACTUAL AND PROCEDURAL BACKGROUND
a ADDIN BA xc <@osdv> xl 11 s
BSMBLJ000015 l "section 300" section 300 petition filed May 27,
2011,
County Department of Health and Human Services (the
department) alleged:
Father failed to protect the minor
in that he left her in the care of mother (A. H.), knowing that mother had a
substance abuse problem and a mental health problem, and thereafter gave the
department misleading information regarding mother’s and the minor’s
whereabouts.
Mother had an active and untreated
health condition and a long history of abusing methamphetamine
and other illicit substances, and had refused or failed to benefit from
voluntary services to deal with these problems.
Mother had previously lost custody of two half siblings of the minor due
to her drug problem, and both had since been adopted. On or about the date of the minor’s birth (August 7,
2010), the minor
tested positive for methamphetamine.
In July 2011, the juvenile court
sustained the petition as to mother, but found the department had failed to
meet its burden of proof as to father.
The court placed the minor with father on condition that the parents
refrain from living together and that father submit to random drug testing for
30 days; mother received reunification services. The department was authorized
to require father to submit to an alcohol and other drug assessment
(assignment).
In November 2011, alleging that
father tested positive for methamphetamine on three different dates in July and
August 2011, the department filed a ADDIN
BA xc <@osdv> xl 11 s BSMBLJ000016 l "section 388" section 388 petition seeking court-ordered
drug treatment for him. On December 28,
2011, the court
ordered father to participate in the specialized treatment and recovery program
(program) and dependency drug court, and to test for drugs until he reported to
the program intake.
On January 4, 2012, the
department filed a status review report recommending continued dependency for
the minor, continued placement with father (but only if he tested negative for
drugs and actively engaged in substance abuse treatment), and termination of
mother’s services.
The report stated that mother was
arrested on October 24, 2011, for felony possession of narcotics and was
incarcerated in county jail with an expected release date of June 22,
2012. Father was arrested at the same time on an
outstanding misdemeanor warrant; both parents were found by law enforcement
together in father’s vehicle. Father had
not informed the social worker of his arrest and the social worker did not know
where the minor had been during father’s arrest and incarceration.
Mother’s program case was closed for
nonparticipation in August 2011. Mother
had not contacted the department or enrolled in parenting and counseling groups
since the minor was released to father’s care in July 2011. Mother had not visited the minor in the last
six months.
Father tested positive for
methamphetamine at his program intake on December 29, 2011. He had been referred to strategies for change
for outpatient treatment, but would be reassessed for a higher level of
treatment if he continued to test positive.
He did so again on January 3, 2012, but denied methamphetamine use
and blamed his positive results on kidney stones.
At an in-home review hearing on
January 6, 2012, the parties submitted on the report. The juvenile court continued the minor’s
placement with father and extended mother’s reunification services.
On February 3, 2012, the
department filed a subsequent supplemental petition requesting placement of the
minor in foster care. ( ADDIN BA xc <@osdv> xl 11 s
BSMBLJ000017 xpl 1 l "§§ 342, 387" §§ 342, 387.) The petition alleged that father had tested
positive for methamphetamine nine times from July 2011 to January 2012, had
missed a test in January 2012, had not acknowledged his substance abuse
problem, and had refused to enter residential treatment as recommended by his
program worker on January 19, 2012.
The department’s application for
protective custody further alleged: At
the January 19, 2012, program meeting, father was offered the chance to
place the minor in a voluntary placement so that he could enter residential
substance abuse treatment. He declined,
indicating he could refrain from further methamphetamine use. Nevertheless, he had two subsequent positive
tests for methamphetamine. He still
blamed these results on kidney stones, but this explanation seemed
implausible. His program worker said the
results came from “oral swabs†which showed recent methamphetamine use and
could not have been processed or affected by the kidneys; in any event, the
social worker knew of no information suggesting that kidney stones can cause a
positive methamphetamine test. Moreover,
father had recently obtained a prescription for pain medication. The program’s policy would preclude testing
father for up to 30 days while he was taking such medication, and if he
continued to do so after 30 days, it would close his case. Therefore, he had been referred to strategies
for change for interim testing.
On February 10, 2012, over
father’s objection, the juvenile court ordered the minor detained.
On February 28, 2012, father
was dismissed from dependency drug court for failure to participate.
The department’s jurisdictional
report, signed February 29, 2012, recommended continued placement for the
minor in the foster home, where she was adjusting well. The report also recommended bypassing
services to both parents because they had failed to address their drug
problems.
On January 31, 2012 (before the
minor’s detention), a social worker intern met with father and the minor at
father’s residence. It was organized,
clutter-free, and well stocked with food.
The minor stayed with father’s roommate, “Jimbo,†while father was
working.
Mother had never had any concerns
about father’s alleged methamphetamine use and was very surprised by the
current allegations. She said she and
father were still together, but she was willing to separate from him if he did
not rehabilitate from his substance abuse problem.
Father went to the hospital in late
January 2012, because of pain from kidney stones; he was prescribed Vicodin
among other drugs. Due to his
prescription, he was on a 30-day leave from the program effective
January 27, 2012. If he were
dismissed from dependency drug court (as he subsequently was), his program case
would be closed. The social worker
intern had referred him for biweekly testing at strategies for change, but that
organization had no test results for father more recent than August 9,
2010. As of March 2, 2012, he had not
enrolled in a substance abuse treatment program.
Father had made minimal progress in
his case plan services and had not participated in substance abuse treatment
services, general counseling, and parenting classes. He had failed to take the minor to medical
and dental appointments.
The juvenile court held a contested
jurisdiction/disposition hearing from May 1 to May 7, 2012. The witnesses included social workers
Margaret Salvemini and Jennifer Butcher.
Salvemini, who had long experience
in substance
abuse assessment, counseling, and treatment, testified
that parents addicted to drugs such as cocaine and methamphetamine are likely
to neglect their children because the parents put pursuit of the drug ahead of
the children’s needs, especially their emotional needs. Children of addicted parents often experience
bonding problems and developmental delays; methamphetamine can create “anger
issues†and has an impact on “emotions and learning.â€
Because the parents’ pursuit of the
drug can bring about an irregular way of life, including the frequent presence
of strangers in the home, children tend to seek out other adults in the hope of
getting attention, which often leads to physical and sexual abuse. Addicted parents frequently have unstable
housing situations, entailing homelessness, temporary housing, and leaving
children with unsafe caretakers, all of which is especially detrimental for
children under the age of three. The
parents also frequently divert essential funds from providing for the children
to obtaining drugs, leaving their homes without food, clothing, or power.
Methamphetamine
tends to be used in “runs†where the user will go for three to five days on the
drug without sleeping or eating regularly, while the children are left to fend
for themselves. Social workers often
find small children left alone or uncared for in the early morning hours
because their parents had gone on a run and crashed.
Because it is in powder form,
methamphetamine permeates its surroundings.
Thus, children are exposed when they touch contaminated surfaces and put
their hands in their mouths.
The fact that a parent uses
methamphetamine regularly raises concerns of risk to a child, because drugs are
“seductive.†Moreover, drug users seek
out other drug users because nonusers will not tolerate users’ behavior.
Children under age three are at
greater risk of abuse and neglect from methamphetamine-using parents than older
children: “[A] child under the age of
three cannot make themselves a peanut butter sandwich, cannot generally walk
next door and tell someone what is going on, cannot fend for themselves, no one
see [sic] those children. They’re not in school, they’re kind of stuck
in their situation. They would be highly
vulnerable.â€
Butcher, the case-carrying social
worker from late May 2011 to the present, stated that there would be a risk in
returning the minor to father “based on mainly everything that [Salvemini]
testified to earlier which is the poor decision making that you see associated
with methamphetamine abuse, prioritizing the use of the drug over meeting the
child’s needs, making bad decisions about who you’re leaving the child with,
who you’re allowing in and out of the home, whether or not you’re feeding them
on schedule, changing their diaper on schedule, sleeping and not monitoring the
children, things of that nature.â€
Father’s living arrangements had
changed several times since Butcher got the case. The juvenile court initially continued
disposition because father did not have a place to stay with the child.
stayed at a motel for two days; then he stayed with friends, sleeping in
someone’s living room for months; then he rented a room. Now he had another new address, which Butcher
did not know anything about. When father
was discharged from the hospital in August 2011, the discharge papers showed a
different address from his home address.
When Butcher visited father’s
residence, he was not always there, but the minor usually was. Willie Ray Miller (known as Jimbo), the
friend father stayed with after leaving the motel, normally watched her. Although Butcher would not have chosen him as
a caretaker, she did not have “substantial concerns†about him.
Father was in denial about his
substance abuse problem. His lack of
honesty on this subject meant that everything he said had to be questioned.
When father was confronted at the
January 2012 program meeting and offered treatment, he was told that “nobody is
believing these explanation[s], they’re completely implausible and you’re about
to lose your child. Let us do this
. . . placement and get you the help that you need before you lose
this child.†His statement that he
thought he could stop using methamphetamine on his own was a “slight
acknowledgement†of his problem, but the only one so far. After the program meeting, he tested positive
again. In Butcher’s opinion, he could
not be worked with on this problem.
Butcher acknowledged that the
minor’s developmental, mental, and physical needs were currently being
met. She had not seen any bonding
problems between father and the minor.
Although she was concerned that father’s drug use might lead him to keep
odd hours, she had not observed that he was actually doing so. When she did not find him at home, it was
during daytime working hours; if she visited in the early evening, he was
there.
Father did not testify or present
evidence. He opposed jurisdiction,
arguing that even if he had a substance abuse problem, there had been no
showing of harm or risk of harm to the minor in his care.
The juvenile court sustained the ADDIN
BA xc <@osdv> xl 11 s BSMBLJ000018 l "section 387" section 387 petition, making the following
findings:
When the court heard the original ADDIN
BA xc <@$osdv> xl 11 s BSMBLJ000015 section 300 petition in July 2011, it
ordered father to test for drugs (initially for 30 days). From then until January 29, 2012, he had
tested positive for methamphetamine 10 times and failed to test another four
times, which counted as additional positive results. Two presumptive positive tests were confirmed
as positive for methamphetamine by the laboratory; father had the opportunity
to have the other presumptive positive tests confirmed or not confirmed by
paying $20 for lab testing, but he declined to do so.
Despite these results and the
court’s offer of services for substance abuse, father denied for six months
that he was taking methamphetamine. He
had “not been candid at all about this.
He claimed it was the result of kidney stones, that his doctors would
provide proof, would provide evidence, that he would prove it. That’s what he said. He said it in court in prior hearings. He said it to me. There is no proof. No proof has been offered and that’s because
the proof does not exist.â€
Faced in January 2012 with the
choice of doing drug treatment or seeing the department file a petition to
remove the minor from his care (“choose meth or choose your childâ€), father
“foldedâ€: he acknowledged he was using
methamphetamine, but said he could stop if he wanted to. Unfortunately, those were “famous last
words.†After one negative test, “he
resumed his positive tests which is to say he resumed using
methamphetamine.â€
“In view of the father’s consistent
use of methamphetamine, his persistent false denials for months, his refusal to
take up numerous offers of treatment, his final decision to choose
methamphetamine over his child, in view of the extraordinary dangers of meth,
the havoc that it inevitably brings to those who use it and to their families,
and in view of the child’s very young age and total dependency on its
caregiver, the Court finds that there has been adequate showing of a
substantial risk of serious physical harm both as a result of the father’s
inability to adequately protect and to provide regular care due to his
substance abuse.†By clear and
convincing evidence, there was substantial danger to the minor if returned to
father. The department did not have to
wait to petition to remove the minor until she had suffered actual physical
harm in father’s care.
As to disposition, the juvenile
court found insufficient evidence to justify bypassing services to father under
ADDIN BA xc <@osdv> xl 34 s
BSMBLJ000019 l "section 361.5, subdivision (b)(13)" section 361.5, subdivision (b)(13), the only
provision cited by the department.
Father’s 1997 conviction for methamphetamine use, the evidence of “some
use in 2006 to 2008,†and the current evidence did not amount to the “history of
extensive, abusive, and chronic . . . use†of methamphetamine
required by that provision. Therefore,
the court ordered six months of services for father.
DISCUSSION
I
Jurisdictional
Findings
contends the juvenile court abused its discretion by exercising jurisdiction
because there was no substantial evidence that the minor was at risk in
father’s custody. According to father,
there was no nexus between his positive drug tests or refusal to enter a recommended
residential treatment program and risk of serious physical harm or illness to
the minor, there was no substantial evidence that the minor was adversely
affected by father’s positive drug tests, and the court’s finding of potential
risk was based only on speculation. We
disagree.
Under ADDIN
BA xc <@$osdv> xl 28 s BSMBLJ000014 section 300, subdivision (b), a child is
subject to juvenile court jurisdiction if the 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 his or her parent . . . to
provide regular care for the child due to the parent’s . . .
substance abuse.†This finding must be
made by a preponderance of the evidence. ( ADDIN BA xc <@osdv> xl 16 s
BSMBLJ000021 xpl 1 l "§ 355, subd. (a)" § 355, subd. (a).) Once the court has found that the minor is a
person described by ADDIN
BA xc <@$osdv> xl 11 s BSMBLJ000015 section 300, the minor may be removed from
the parents’ physical custody if the court finds clear and convincing evidence
that there is or would be a substantial danger to the minor’s physical health,
safety, protection, or physical or emotional well-being if the minor were
returned home, and there are no reasonable means by which the minor can be
protected without removal. ( ADDIN BA xc <@osdv> xl 16 s
BSMBLJ000022 xpl 1 l "§ 361, subd. (c)" § 361, subd. (c).) The same standards apply to a subsequent
petition alleging new facts and circumstances.
(
ADDIN BA xc <@osdv> xl 5 s BSMBLJ000023 xpl 1 l
"§ 342" § 342; see ADDIN
BA xc <@cs> xl 47 s BSMBLJ000003 xhfl Rep xpl 1 l "
Cal.App.4th 792" In re
Carlos T. (2009) 174 Cal.App.4th 795, 806.)
“A jurisdictional finding under ADDIN
BA xc <@$osdv> xl 28 s BSMBLJ000014 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.†[Citation.]’ [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.]†( ADDIN BA xc <@cs> xl 46 s
BSMBLJ000004 xhfl Rep xpl 2 l "In
re James R.
James R. (2009) 176 Cal.App.4th 129, 135.)
“Evidence of past conduct, without
more, is insufficient to support a jurisdictional finding under ADDIN
BA xc <@$osdv> xl 11 s BSMBLJ000015 section 300.
There must be some reason beyond mere speculation to believe the alleged
conduct will recur. [Citation.]†(In re ADDIN
BA xc <@$cs> xl 42 s BSMBLJ000004 xhfl Rep xpl 1 James
R., supra, 176 Cal.App.4th at p. 136.)
On appeal, we apply the substantial
evidence test to jurisdictional findings.
We view the evidence most favorably to the findings and affirm if they
are supported by evidence which is “ ‘reasonable in nature, credible, and of
solid value.’ [Citation.]†( ADDIN BA xc <@cs> xl 42 s
BSMBLJ000005 xhfl Rep xpl 1 l "In
re A.S.
A.S. (2011) 202 Cal.App.4th 237, 244.)
We note at the outset that father’s
opening brief does not quote, summarize, or paraphrase the juvenile court’s
findings, but merely states how the court ruled. Because father does not squarely address the
evidence cited by the juvenile court, we could find that his
insufficient-evidence claim is forfeited.
(See ADDIN BA xc <@cs> xl 56 s
BSMBLJ000006 xhfl Rep xpl 1 l "Foreman
& Clark Corp. v. Fallon
& Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; ADDIN
BA xc <@cs> xl 52 s BSMBLJ000007 xhfl Rep xpl 1 l "
189 Cal.App.3d 1485" Niederer
v. Ferreira (1987) 189 Cal.App.3d 1485, 1510.) However, we shall reach the merits of the
claim. Doing so, we find that
substantial evidence supported the court’s findings.
The testimony of substance abuse
expert Salvemini as to the usual effects of untreated methamphetamine addiction
on a parent’s capacity to care safely for a child, especially one as young as the
minor, was undisputed. The testimony of
case-carrying social worker Butcher as to father’s addiction, his consistent
denial thereof, and his chronic dishonesty in manufacturing excuses for his
long string of positive test results, together with his failure or refusal to
take advantage of the treatment programs he had been offered, established that
father was an addict with no apparent motivation to change -- even when told
“choose meth or choose your child.†Although
father was currently working and living with a roommate who could tend to the
child in father’s absence, the court could reasonably doubt whether either
father’s capacity to work or his ability to remain in association with a
responsible roommate would last, given the typical instability of
methamphetamine addicts’ lives. In
short, the court could reasonably find, based on substantial evidence, that
father’s untreated substance abuse problem put the minor at serious risk of
potential harm, even if she had not yet suffered such harm. (See ADDIN
BA xc <@cs> xl 50 s BSMBLJ000008 xhfl Rep xpl 1 l "
Cal.App.4th 1264" In re
R.R. (2010) 187 Cal.App.4th 1264, 1283-1284; see generally ADDIN
BA xc <@cs> xl 48 s BSMBLJ000009 xhfl Rep xpl 1 l "
Cal.App.4th 814" In re
Rocco M. (1991) 1 Cal.App.4th 814, 824-825 [children of tender years
at greater risk from absence of adequate supervision and care].)
Father asserts without citing
authority that his “positive drug tests did not pose a substantial risk of
future risk of serious physical harm.â€
(Capitalization omitted.) Father
merely recites the evidence that the minor has not yet suffered harm in his care,
which is insufficient to rebut the evidence of potential future harm we have
set out above. The same shortcoming
defeats his assertion that any prediction of future harm was merely
speculative.
Father asserts, citing ADDIN
BA xc <@cs> xl 42 s BSMBLJ000011 xhfl Rep xqt l "
Cal.App.4th 139" In re
J.O. (2009) 178 Cal.App.4th 139,
that there was no “causal nexus [shown] between the court’s findings of
serious injury and the findings related to the parent.†ADDIN
BA xc <@$cs> xl 10 s BSMBLJ000011 In re
J.O. is inapposite. First, the court
there was considering evidence of actual harm to the child, not evidence of the
risk of future harm. ( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id.
at p. 152.) Second, the court found
a lack of causal nexus as to the appellant (father) because the physical injury
was caused by the conduct of the child’s mother, not of the father. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.)
Finally, father asserts, citing
BA xc <@$cs> xl 49 s BSMBLJ000004 xhfl Rep xqt James
R., supra, 176 Cal.App.4th at pages 135-136, that there was no
evidence of actual risk, but only “[p]erceptions of risk,†which are not
substantial evidence under ADDIN
BA xc <@$osdv> xl 28 s BSMBLJ000014 section 300, subdivision (b). But in ADDIN
BA xc <@$cs> xl 8 s BSMBLJ000004 James
R., the parents were together, maintaining a stable home, and caring for
the minors well, and neither had any demonstrated current substance abuse
problem; the only evidence of risk to the minors was that the mother had a
negative reaction to combining ibuprofen and beer. (In re ADDIN
BA xc <@$cs> xl 47 s BSMBLJ000004 xhfl Rep xpl 1 James
R., supra, 176 Cal.App.4th at pp. 136-137.) These facts are far different from the
present case, where both parents are addicted to methamphetamine and father
remains in denial about his addiction.
Substantial evidence supported the
juvenile court’s jurisdictional findings.
II
Protection
Of The Minor
contends no substantial evidence supported the court’s finding that no
reasonable means existed to protect the minor without removal from his
custody. ( ADDIN BA xc <@$osdv> xl 16 s
BSMBLJ000022 xpl 1 § 361, subd. (c).) However, father offers no new argument on
this point, but merely reiterates the arguments we have rejected in part I of
the Discussion. For the reasons given
above, we conclude that the court correctly found there were no reasonable
means to protect the minor without removing the minor from father’s custody. So long as father chose methamphetamine over
his child, she could not be protected in his care.
DISPOSITION
The judgment is affirmed.
ROBIE , Acting P. J.
We concur:
BUTZ , J.
DUARTE , J.
name="_ftn1" title="">[1]
ADDIN BA xc <@osdv> xl 20 s
BSMBLJ000012 l "Undesignated
section" Undesignated section references are to the ADDIN BA xc <@ost> xl 29 s
BSMBLJ000013 l "Welfare
and Institutions Code" Welfare and Institutions Code.
name="_ftn2" title="">[2]
Salvemini had not assessed or
worked with the parents in this case and was not familiar with the minor.
