In re C.R.

 

 

 

 

 

 

 

 

Filed 9/14/12  In re C.R. CA2/5

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
FIVE

 

 
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In re C.R. et al., a Person Coming Under the Juvenile Court Law.	B238922       (Los Angeles County       Super. Ct. No. CK73570)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,               Petitioner and Respondent,               v.   R. H.,               Objector and Appellant.

 

            APPEAL from
orders of the Superior Court of the County
of Los
Angeles, Albert J. Garcia, Commissioner.  Affirmed.

            Suzanne
Davidson, under appointment by the Court of Appeal, for Objector and Appellant.

            John F.
Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel, and
Jessica S. Mitchell, Associate County Counsel, for Petitioner and Respondent.

>INTRODUCTION

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            Objector and appellant R.H. (mother), the mother of C.R.
and E.R. (the twins), appeals from the juvenile court’s jurisdiction and
disposition orders entered pursuant to Welfare and Institutions Code section
300, subdivision (b) and section 361, subdivision (c)(1).href="#_ftn1" name="_ftnref1" title="">[1]  According to mother, there was insufficient
evidence to support the juvenile court’s finding that her past drug abuse
problems and current methadone treatment posed a substantial risk of harm to
the twins.  In addition, mother contends
there was insufficient evidence to
support the juvenile court’s order removing custody of the twins from her and
that there were reasonable means available to protect the twins without
removing them from her custody.

            We hold
that there was substantial evidence to support the juvenile court’s findings on
the jurisdiction and disposition orders. 
We therefore affirm those orders.

 

FACTUAL AND PROCEDURAL BACKGROUND

 

            On October 11, 2011, a children’s
social worker (CSW) for the Department of Children and Family Services (DCFS)
received an “Immediate Child Abuse” referral alleging that mother had given
birth to twin boys in October 2011, and that she

admitted to using methadone during her pregnancy.  The referral also stated that mother had
relinquished guardianship of her other children and that the newborn twins
needed to be assessed immediately.  Based
on the referral and mother’s prior history with DCFS, the juvenile court
granted DCFS’s request for a removal order following which the children were
detained from mother and released to their father.

            In response
to the referral, the CSW spoke to a medical social worker who confirmed that
mother had admitted to using methadone throughout the course of her
pregnancy.  The CSW also interviewed the
nurse who cared for the twins in the neo-natal intensive care unit.  The nurse reported that the twins
“demonstrated behaviors that were indicative of withdrawal.”  The nurse specifically observed that the
twins had “high pitched cries” and exhibited “excessive sucking” behavior.  The nurse informed the CSW that she was
unaware of any other medical condition that would cause such behavior.

            On October 12, 2011, the CSW
interviewed mother who explained that she was unaware she was pregnant until
three months into the pregnancy.  According to mother, her drug treatment clinic
told her that “if she suddenly stopped using methadone she could miscarry and
lose both children,” and it was for that reason that she continued to use
methadone throughout her pregnancy. 
Mother provided the CSW with documentation from the Pacific
Alliance Medical
Center that indicated that while
she was being treated for drug addiction there, she was prescribed methadone
“with the full knowledge and approval of medical staff at that hospital.”  Mother thereafter provided a letter from her
obstetrician which explained that mother had been “informed that it [was]
important to continue her methadone treatment throughout [her] pregnancy, as
withdrawals during pregnancy pose[d] a risk of complications and even pregnancy
loss.”

            The CSW
also reported that mother’s “substance abuse history ha[d] existed for an
extended period of time.”  The CSW
further noted that notwithstanding that mother had been advised by her
physician to continue to use methadone during her pregnancy, the twins were
“exposed to the substance,” and they were “manifesting withdrawal symptoms from
their exposure to methadone” at the hospital. 
The CSW then provided mother’s detailed “prior child welfare history,”
including the fact that mother had five other children who were no longer in
her custody due to her longstanding drug abuse.

            The CSW
concluded that, based on the foregoing information, the twins were “at high
risk for abuse.”  The CSW therefore
recommended that “continued detention [of the twins] from . . . [mother was]
necessary to protect their safety.”

            On October
19, 2011, DCFS filed a petition under section 300 alleging in paragraph b-1
that:  “The children[’s], . . . [the
twins’] [mother] has a history of substance abuse including cocaine and
prescription medication and is a current abuser of methadone, opiates, codeine
and morphine which renders the [twins’] mother incapable of providing regular
care for [them].  On October 12, 2011, the mother and [sic] had a
positive toxicology screen for opiates, codeine and morphine.  The [twins’] siblings, Kristina [H.] . . .
and Victoria [G.] . . . received Permanent Placement Services, due to mother’s
illicit drug use.  The mother’s illicit
drug use endangers the [twins’] physical health and safety and creates a
detrimental home environment, placing the [twins] at risk of physical harm and
damage.”

            At the
October 19, 2011, detention hearing, the juvenile court found that there was a
prima facie case for detaining the twins and that the twins were persons
described in section 300, subdivision (b). 
The juvenile court further found that a substantial danger existed to
the physical or emotional health of the twins and that no reasonable means
existed to protect the twins without removal. 
The juvenile court also found that reasonable efforts had been made to
prevent or eliminate the need for the removal of the twins from mother’s
custody and that “continuance in the [mother’s] home [was] contrary to the
[twins’] welfare.  The twins were
temporarily placed with DCFS and released to their father.  The juvenile court granted mother monitored
visitation.

            In the
December 5, 2011, jurisdiction/disposition report, a CSW reported that she
interviewed mother who admitted that she began using and abusing vicodin after
it was prescribed following a dental procedure, and then also began abusing
oxycontin.  Mother explained that she had
not abused prescription drugs for three years and had been attending a
methadone clinic for three years. 
According to mother, she was using 110 mg of methadone per day and, on
the date of the interview, she was using 95 mg per day.  Mother stated that she attended her methadone
clinic for three hours a day, Monday through Friday, and also participated in
AA meetings Monday through Saturday. 
Mother claimed that she was “in a different place in her life” and was
“following her methadone treatment religiously.”  In the report, a CSW confirmed that mother
had failed to reunify with her other children due to her past drug use.  The CSW recommended to the juvenile court,
inter alia, that the twins be declared dependents of the court under section
300, subdivision (b), that mother receive family reunification services, and
that she participate in individual counseling and substance abuse
treatment. 

            In a last
minute information filed with the juvenile court on December 5, 2011, a CSW
reported that mother had tested negative for drugs on November 29, 2011, but
that on July 12, 2011, mother tested positive for morphine and that on October
12 and 19, 2011, mother tested positive for codeine.  According to mother’s substance abuse
counselor, mother tested positive for codeine in October 2011 because she had
been given that pain medication at the hospital due to the caesarian birth of
the twins.  

            On December
5, 2011, the juvenile court held a pretrial resolution conference during which
mother’s counsel claimed that the July 12, 2011, positive test result for
morphine was due to emergency room treatment mother received for gallstones.  Her counsel represented to the juvenile court
that mother would provide documentation supporting that claim. 

            At the
January 12, 2012, jurisdiction/disposition hearing, DCFS submitted as evidence
the detention report, the jurisdiction/disposition report, and the December 5,
2011, last minute information for the court. 
Mother’s counsel then called her substance abuse counselor as a witness
who testified that he was mother’s primary counselor in her “group and individual
methadone maintenance program.”  In the
program, mother attended a clinic daily to receive her daily dose of
methadone.  She began that particular
program on April 15, 2011. 

            Mother’s
counsel next called an obstetrician who treated mother during her pregnancy
with the twins.  According to the
obstetrician, mother’s pregnancy with the twins was “complicated by the
substance abuse history for which she was treated with methadone.”  Therefore, the obstetrician’s team was
responsible for caring for her high risk pregnancy while another obstetrician
provided mother routine obstetrical care. 
The high risk pregnancy obstetrician was aware that the twins tested
positive for methadone at birth and had withdrawal symptoms, but opined that
they would not have experienced those symptoms if mother had been allowed to
breast feed them as planned.  The
obstetrician also opined that mother’s methadone levels were appropriate, and
that reducing or stopping methadone during pregnancy could have caused the
twins to suffer withdrawal symptoms in utero serious enough to cause a loss of
the pregnancy. 

            On
cross-examination, the obstetrician stated that she would not advise a woman
being treated with methadone to become pregnant.  The obstetrician also explained that although
some patients need to be treated with methadone for life, that need varies from
patient to patient.  According to the
obstetrician, if mother had a positive drug test for morphine, it could be
considered as a relapse. 

            Mother
testified that the positive drug test for morphine on July 12, 2011, was the
result of treatment she received for gallstones.  She did not, however, have any documentation
confirming that treatment. 

            At the
close of testimony, the juvenile court found paragraph b-1 of the petition to
be true and found the twins to be persons described under section 300,
subdivision (b) and dependents of the court. 
In doing so, the juvenile court observed that mother needed more
treatment and that the twins needed to be protected.  According to the juvenile court, mother
needed “to stay clean.  And she [did not]
understand that,” a statement that suggested that the juvenile court did not
find mother’s excuse for the July 2011 positive drug test credible.  The juvenile court further found that a
substantial danger existed to the physical or emotional well-being of the twins
and that no reasonable means existed to protect the twins without removal of
custody from mother.  In addition, the
juvenile court found that DCFS had made reasonable efforts to eliminate the
need for removal of custody of the twins from mother.  Based on those findings, the juvenile court
ordered that custody of the twins be taken from mother and that the care,
custody, and control of the twins be placed under the supervision of DCFS.  The twins were placed in the home of their
father, and mother was granted family reunification services and monitored
visitation.  The juvenile court also
required mother to provide explanations from her doctors in the event she had
“any dirty, missed . . . , or diluted [drug] test[s].”  And the juvenile court required mother to
complete a full drug and alcohol rehabilitation program with drug and alcohol
testing on demand.   

 

 

 

>DISCUSSION

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            A.        Standard of Review

            Mother’s
challenges to the sufficiency of the evidence in support of the juvenile
court’s jurisdictional and dispositional findings are reviewed under the
substantial evidence standard of review.  
“On appeal, the ‘substantial evidence’ test is the appropriate standard
of review for both the jurisdictional and dispositional findings.  (In re Kristin H. (1996) 46
Cal.App.4th 1635, 1654 [54 Cal.Rptr.2d 722]; In re P.A. (2006) 144
Cal.App.4th 1339, 1344 [51 Cal.Rptr.3d 448].) 
The term ‘substantial evidence’ means such relevant evidence as a
reasonable mind would accept as adequate to support a conclusion; it is
evidence which is reasonable in nature, credible, and of solid value.  (See In re Jerry M. (1997) 59
Cal.App.4th 289, 298 [69 Cal.Rptr.2d 148].)” 
In re J.K. (2009) 174
Cal.App.4th 1426,1433.)  “‘In making this
determination, all conflicts [in the evidence and in reasonable inferences from
the evidence] are to be resolved in favor of the prevailing party, and issues
of fact and credibility are questions for the trier of fact.  [Citation.] 
In dependency proceedings, a trial court’s determination will not be
disturbed unless it exceeds the bounds of reason. [Citation.]’  (In re Ricardo L. (2003) 109
Cal.App.4th 552, 564 [135 Cal.Rptr.2d 72].)” 
(In re Savannah M. (2005) 131
Cal.App.4th 1387, 1393.)  “When an
appellate court reviews a sufficiency of the evidence challenge, we may look
only at whether there is any evidence, contradicted or uncontradicted, which
would support the trier of fact’s conclusion. 
We must resolve all conflicts in favor of the court’s determination, and
indulge all legitimate inferences to uphold the court’s order.  Additionally, we may not substitute our
deductions for those of the trier of fact. 
(In re Katrina C. (1988) 201 Cal.App.3d 540, 547 [247 Cal.Rptr.
784]; In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1132 [200 Cal.Rptr.
789].)”  (In re John V. (1992) 5 Cal.App.4th 1201,1212.) 

 

 

 

            B.        Substantial Evidence in Support of Risk
of Harm

            Mother first challenges the sufficiency of the evidence
in support of the jurisdictional findings as to the twins.  The juvenile court found that each child was
a person described by section 300, subdivision (b).  That section provides in pertinent part:  “Any child who comes within any of the following
descriptions is within the jurisdiction of the juvenile court which may adjudge
that person to be a dependent child of the court:  [¶]  (b)  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 or guardian to adequately supervise or protect the child, or
the willful or negligent failure of the child's parent or guardian to
adequately supervise or protect the child from the conduct of the custodian
with whom the child has been left, or by the willful or negligent failure of
the parent or guardian to provide the child with adequate food, clothing,
shelter, or medical treatment, or by the inability of the parent or guardian to
provide regular care for the child due to the parent’s or guardian’s href="http://www.sandiegohealthdirectory.com/">mental illness, developmental
disability, or substance abuse. . . .”  

            Mother
contends that her past drug abuse history, her current methadone use, and the
one July 2011 positive drug test for morphine did not support a reasonable
inference that the twins were at risk of harm. 
According to mother, at the time of the jurisdiction hearing, she was
doing well in her treatment programs and not abusing illicit drugs.  In addition, mother asserts that she provided
a satisfactory explanation for the July 2011 positive drug test.

            The
evidence before the juvenile court showed that mother had a long history of
drug abuse that was so incapacitating it caused her to lose custody of her five
other children.  It also required her to
take daily doses of methadone over a long period of time—three years—without
substantially reducing her dosage. 
Moreover, the evidence showed that mother continued to use methadone
during her pregnancy and, as a result, the twins suffered from withdrawal
symptoms following their birth, i.e., they suffered physical harm as a direct
result of mother’s drug abuse issues. 
That evidence was sufficient to support a reasonable inference that
mother had a serious drug addiction issue that prevented her from caring for
her other children and which caused physical harm to the twins at birth.  (See In
re Troy D. (1989) 215 Cal.App.3d 889,897 [“The fact that [the minor] was
diagnosed as being born under the influence of a dangerous drug is legally
sufficient for the juvenile court to exercise jurisdiction”].)href="#_ftn2" name="_ftnref2" title="">[2]

In addition, the evidence showed
that, notwithstanding her methadone treatment and drug abuse programs, mother
tested positive for morphine in July 2011. 
Although mother provided an explanation for that positive test, she had
no documentation to support that explanation, and the juvenile court did not
find the explanation credible.  That
test, coupled with the other evidence, was sufficient to support a reasonable
inference that mother had relapsed in July 2011 and was therefore at risk of
doing so in the future.  Given that
mother had a history of being unable to care for and protect her children while
she was abusing drugs, the risk of relapse was sufficient to support an
inference that the twins were at risk of harm.

 

C.        Substantial Evidence in
Support of Removal Order

            In determining whether to remove
a child form his or her parents’ custody, the juvenile court must find that
“[t]here is or would be substantial danger to the physical health, safety, protection,
or physical or emotional well-being of the minor if the minor were returned
home . . . .”  (§ 361, subd.,
(c)(1).)  “‘A removal order is proper if
it is based on proof of parental inability to provide proper care for the minor
and proof of a potential detriment to the minor if he or she remains with the
parent.  [Citation.]  The parent need not be dangerous and the
minor need not have been actually harmed before removal is appropriate.  The focus of the statute is on averting harm
to the child.  [Citation.]’  (In
re Diamond H. (2000) 82
Cal.App.4th 1127, 1136 [98 Cal.Rptr.2d 715], disapproved on another
point in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6
[110 Cal.Rptr.2d 828, 28 P.3d 876].)  The
juvenile court’s findings must be based on clear and convincing evidence.  (In re Isayah C. (2004) 118
Cal.App.4th 684, 696 [13 Cal.Rptr.3d 198]; In re Kristin H. (1996) 46
Cal.App.4th 1635, 1656 [54 Cal.Rptr.2d 722].) 
[As noted,] . . . an order removing a child from parental custody [is reviewed]
for substantial evidence in a light most favorable to the juvenile court
findings.  (D.M. v. Superior Court
(2009) 173 Cal.App.4th 1117, 1120 [93 Cal.Rptr.3d 418]; In re Heather A.
(1996) 52 Cal.App.4th 183, 193 [60 Cal.Rptr.2d 315].)”  (In re
Miguel C. (2011) 198 Cal.App.4th 965, 969.)

            Mother contends that even
assuming there was substantial evidence to support the juvenile court’s
jurisdictional findings, there was insufficient evidence to support the
disposition order removing the twins from her custody.  According to mother, she was doing well in
her treatment programs, she was not abusing illicit drugs, and there were
reasonable means, short of removal, to protect the twins from the risk of harm,
such as, for example, supervision by the twins’ father and “wraparound”
services.

            The
evidence showing physical harm to the twins at birth and a current risk of
relapse discussed above was sufficient to support the removal order.  That evidence supported a reasonable
inference that despite her long term methadone treatment and drug programs,
mother was still at risk of relapse, as evidenced by the July 2011 positive
drug test result.  Therefore, it was
reasonable for the juvenile court to conclude that mother needed further
treatment and testing before she could take full responsibility for the care
and protection of the twins.  Because
past supervision by father and past drug abuse treatment services failed to
prevent the July 2011 relapse, there was substantial evidence that removal was
necessary to protect the twins and that there were no reasonable means
available to protect the twins without such removal. 

 

>DISPOSITION

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            The juvenile court’s jurisdiction and disposition orders
are affirmed.

            NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

                                                                                    MOSK,
J.

 

 

We concur:

 

 

 

                        ARMSTRONG,
Acting P. J.

 

 

 

                        KRIEGLER,
J.