In re D.A.
Filed 9/3/13 In re D.A. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
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 D.A., a Person Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
A.W.,
Defendant and Appellant.
D063715
(Super. Ct.
No. SJ12869)
APPEAL from
a judgment of the Superior Court
of
County, Garry G. Haehnle, Judge. Affirmed.
Lelah S.
Fisher, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel,
Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
Following a contested
the juvenile court found true allegations that then three-month-old D.A., was a
dependent child within the meaning of Welfare and Institutions Code
section 300, subdivision (b). The court
also found it was necessary to remove the child from his mother's custody
pursuant to section 361, subdivision (c)(1).
D.A's mother, A.W. (Mother), appeals contending the evidence was not
sufficient to support the trial court's decision as to both jurisdiction and
disposition. We are satisfied the
evidence is sufficient to support a true finding that D.A. is a dependent child
under section 300, subdivision (b) and that the evidence also supports a
finding that there was no reasonable alternative to removal of D.A. from his
mother's custody. We will affirm the
juvenile court's decisions.
FACTS
AND PROCEDURAL BACKGROUND
D.A. was
born in January 2013. He tested positive
for marijuana and suffered from sepsis and respiratory distress syndrome. Mother, who was then 19 years old, admitted
she had smoked marijuana since she was 16 and that she used marijuana until two
days prior to D.A.'s birth. Mother said
her boyfriend, Eric, with whom she was living, smoked marijuana daily. She believed the smoke may have contributed to
D.A.'s respiratory problems.
On January
29, 2013, the Health and Human Services Agency (Agency) filed a petition on
behalf of D.A. alleging he was at risk of serious harm by reason of Mother's
inability to protect the child or provide regular care because of her substance
abuse. The Agency alleged Mother had
received limited prenatal care and that Eric had also admitted a history of
marijuana abuse.
D.A. was
detained out of home and a jurisdiction and disposition hearing was set for
March 25, 2013. At that hearing the
court received the various reports of social workers and heard testimony from
social worker Vincent Nguyen.
The
evidence at the March 25, 2013 hearing indicated Mother had a child who died in
2010 at the age of one month. The child
died of respiratory problems. The social
worker believed Mother's lack of consistent prenatal care and drug use during
pregnancy demonstrated a lack of concern for D.A.'s health and welfare.
While the
case was pending, Mother enrolled in an outpatient substance abuse
program. Although she claimed her
"clean date" was January 16, 2013, on January 25, 2013, she tested
positive for marijuana. Mother also
tested positive for marijuana on February 4, 2013. However, her test on March 4, 2013 was
negative.
Originally,
Eric had been named as an alleged father.
However, paternity tests were conducted and results received on March 4,
2013 determined Eric was not D.A.'s father.
After the
paternity test results were known, Eric kicked Mother out of his house. She was homeless and received housing
referrals from the Agency. Eric allowed
Mother to return to his house, but later kicked her out again.
Mother had
been enrolled in an outpatient treatment
program, but had missed four meetings and had been placed on a behavior
contract. On March 20, 2013, Mother
entered the KIVA residential treatment program.
At the
conclusion of the jurisdictional and disposition hearing the court found the
allegations true by clear and convincing evidence. The court said:
"We don't know if she has any positive tests
because she missed four or five days of the outpatient program. So who knows if she would have been tested
during that time whether or not she would have been there or not. The problem is she missed four out of five
absences that she had and she was on the verge of being discharged when she
finally entered KIVA on March 20th.
"So the court can't help but take into effect the
issue that the mother has not been stable in her drug treatment program, and
only five days in a residential drug treatment program is certainly not a
significant period of time to show that the mom is going to stabilize in her
drug treatment program in order to be able to safely protect and raise her
child."
Mother
filed a timely notice of appeal.
DISCUSSION
Mother challenges
both the true finding on the petition and the dispositional order removing D.A.
from her custody. She contends there is
insufficient evidence to support either decision. Reduced to its core, Mother's argument is the
true finding on the petition was not supported by the evidence because she no
longer posed a risk to the child's welfare.
Mother asserts that she has quit using marijuana and is in a residential
treatment program where the child could be placed with her. Thus, she argues there is no longer any risk
to D.A.'s welfare and the court had a reasonable alternative to disposition,
that being returning D.A. to her.
We believe
that applying the proper standard of review, the record supports the both the
jurisdictional and dispositional orders.
A. Standard of Review
When a
juvenile court's decision is challenged on the basis of insufficient evidence,
we review such decision under the familiar substantial evidence standard of
review. (In re Lana S. (2012) 207
Cal.App.4th 94, 103.) It is basic
to appellate review that decisions of the trial court are presumed to be
correct and that it is the burden of the appellant to demonstrate error. (In re
Merrick V. (2004) 122 Cal.App.4th 235, 254.) When we review a decision for
entire record in the light most favorable to the trial court and draw all
reasonable inferences in support of that decision. We do not make credibility decisions or
reweigh the evidence. Our task is to
determine whether there is sufficient, substantial evidence to support the
trial court's decision. (
B. Jurisdiction.
In order
for the juvenile court to find a child to be a dependent child under section
300, the court must find the allegations of the petition to be true by a
preponderance of the evidence. (
true by clear and convincing evidence.
The
petition filed by the Agency alleged D.A. came within the meaning of section
300, subdivision (b) because Mother's substance abuse, lack of prenatal care
and history demonstrates she is unable to care for D.A. and to protect him from
harm. The petition alleged, in
part: "COUNT 1: On or about January 18, 2013, the child
tested positive for a narcotic/dangerous drug, to wit, marijuana; and the
mother admits drug usage during pregnancy, had little prenatal care, and the
[boyfriend]
title="">[2]
admits to a history of drug usage/has a history of drug usage/knew the mother
was using drugs . . . ."
In order to
prove that D.A. comes within section 300, subdivision (b), the Agency must show
there is a substantial risk of harm or illness.
While proof of actual harm is a basis for jurisdiction, it is not
necessary for the juvenile court to wait until actual harm has been caused to
the child. (In re I.J. (2013) 56 Cal.4th 766, 773; In re T.V. (2013) 217 Cal.App.4th 126, 133-134.)
In this
case, D.A. was born with a positive test for marijuana and with respiratory
distress. Although Mother had a child
die earlier of respiratory problems, she continued to smoke marijuana during
her pregnancy, until two days before birth.
When the social worker read the allegations to Mother she admitted that
all were true. The social worker noted
that D.A. would require close and careful attention in order to prevent further
injury to him. Continued use of
marijuana and its effect caused Mother to lounge around and not be attentive.
Mother
relies on In re Alexis E. (2009) 171
Cal.App.4th 438 (Alexis E.), to
support her position the evidence here is not sufficient. Alexis
E. does not assist her. In
persistent use of marijuana caused the parent to be unable to effectively care
for the child. Indeed, Mother has stated
she believes marijuana use by her and Eric contributed to D.A.'s respiratory
problems. Further, at the time of the
hearing in this case, Mother had tested positive for marijuana in January and
February. She had missed at least four
sessions of her outpatient treatment program and had only been enrolled in KIVA
for five days prior to the jurisdiction and disposition hearing.
The trial
court reasonably believed Mother had only started the process of dealing with
her addiction and how it potentially impacted the care of her infant
child. Although she had lost one child,
was suspicious that marijuana smoking had a possible connection to respiratory
distress, she did not seek meaningful prenatal care and continued to smoke
marijuana until two days prior to D.A.'s birth.
Her efforts to deal with her addiction were recent and somewhat
sporadic. It was reasonable to infer
from these facts that Mother did not have an understanding of the risks to D.A.
by her conduct and to the extent she was making some efforts to address the
problem it was far too early to demonstrate any change in behavior. There is substantial evidence to support the
true finding on the section 300, subdivision (b) petition.
C. Dispositional Orders
Mother
raises essentially the same arguments to challenge the disposition order as she
did the true finding on the petition.
She does not deny the allegations regarding her addiction, lack of
prenatal care and difficulties with her treatment efforts. She claims she does not use marijuana and is
in a respected treatment program where the child could be with her. Thus the court should have returned D.A. to
her custody, even if there was a basis for jurisdiction. We reject Mother's arguments regarding
disposition for the same reasons we rejected those arguments as to
jurisdiction.
In order to
remove a child from parental custody, after the court has taken jurisdiction
over the child, the court must find a substantial risk of harm to the child
unless he or she is removed from parental custody. (In re
Austin P. (2004) 118 Cal.App.4th 1124, 1129; §§ 358, 360,
361.) The court must find the risk of
substantial harm to be proved by clear and convincing evidence. (§ 361, subd. (c).)
Trial
courts have broad discretion to fashion appropriate disposition orders to
protect the child and to provide for an appropriate plan of reunification. (In re
N.M. (2011) 197 Cal.App.4th 159, 171; In re Miguel C. (2011) 198 Cal.App.4th 965, 969.) The court must also determine whether there
are any reasonable alternatives to removal before it can take custody away from
the parent. (Id. at pp. 970-971; § 361, subd. (c)(3).)
The Agency
offered evidence through the testimony of the social worker that removal of
D.A. from Mother's custody was necessary.
Not only had Mother's treatment efforts been very recent, they were
inconsistent, as we have noted above.
Mother had no support system, was young and only potentially beginning
to understand the risks her conduct posed for D.A. It was not disputed D.A. had already suffered
substantial harm by being born positive for marijuana and suffering from
respiratory distress, among other ailments.
On this
record, it would have been unreasonable to return D.A. to Mother's
custody. Hopefully she will benefit from
her treatment program and reunification efforts. The trial court certainly encouraged her to
pursue those efforts so that she could regain custody of D.A. At the time of disposition, however, Mother's
recent, halting efforts to deal with her personal problems were plainly not
enough to allow reunification at that time.
We find there is substantial evidence in the record to support the
dispositional order, and that the court acted well within its discretion in
fashioning such order.
DISPOSITION
The
jurisdictional and dispositional orders are affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE,
Acting P. J.
McINTYRE,
J.
name="_ftn1" title="">[1] All further statutory references are to the Welfare and
Institutions Code unless otherwise specified.
name="_ftn2" title="">[2] As previously noted Eric was determined not to be D.A.'s
father. Mother was unable to identify
anyone else who could have been the father.
The boyfriend, Eric, was unable to stop Mother from using marijuana
during the pregnancy.
